Republican Justices remain intent on destroying the U.S. Supreme Court
This moment is not even remotely normal. It is a perilous break from our history.
“My wife is fond of flying flags. I am not.” This is Justice Alito’s curt dismissal of all efforts to save what is left of the legitimacy of the Supreme Court. His longer response is that no reasonable person could possibly conclude he has any conflict whatsoever when it comes to questions about January 6th or about what, if any, Presidential Immunity should be afforded to Donald Trump.
Is American democracy to hinge on such arrogance?
Alito knows his flag flying carries a message that people correctly understand. His attempts to draw a distinction between himself and his wife only prove the point. The two flags did not fly over her house, they flew over their house. Imagine two bank robbers get caught fleeing. One is carrying bags of cash. The other says to the judge, “my partner likes to carry bags of cash, I do not.” Alito would rather insist the bank robber is reasonable than protect the integrity and legitimacy of the American legal system.
To be clear, judicial error does not threaten our legal system. Nor do patently bad decisions. We have survived many. What threatens the rule of law is the arrogance of power. Mr. Alito was already seen by many as a partisan. Now he has proved it. The law, the very idea of impartiality, be damned, he says, I will rule on the issues I care most about no matter what anyone thinks. And if they don’t like, they are not reasonable people.
Photo Credit: Pablo Martinez Monsivais/Associated Press
Through appropriate channels and with more patience than Job, Senators Durbin and Whitehouse have afforded Alito ample and capacious opportunities to walk away from the carnage he is creating, to refrain from plunging us all into a Constitutional crisis where most Americans will no longer accept the legitimacy of our Supreme Court. Alito’s stubborn refusal to acknowledge this reality must be met with equally stubborn efforts to save the Supreme Court as an institution.
Similarly, the Senators asked Chief Justice John Roberts to meet to discuss a way to avert the coming crisis. Today, Roberts not only refused, saying things have gone well for 235 years and he didn’t see any reason to rock the boat. He even hinted that discussing this with the Senators would compromise the court.
I have written about the legitimacy problem at the Court for years. More recently, I wrote that it is no longer sufficient for the minority on the Court to author dissents. What good are dissents when power is the ultimate justification for any of the court’s decisions? Seeing this moment coming is not the same thing as normalizing it. It is not even remotely normal; it is, instead, a perilous break from our history.
It isn’t necessary to review the entire series of decisions that brought us to this point to see that Chief Justice Roberts’ blithe appeal to past history is either willfully ignorant or itself dangerously partisan. Consider only the current Presidential immunity case. The Court at first refused to hear Donald Trump’s argument that, as President, he earned life-time immunity from crimes. As his lawyer put it, he could have ordered Seal Team Six to murder his political opponents without fear of any judicial accountability. The appellate court did take up the case, unanimously ruling that Mr. Trump had no such immunity, and reminding Americans that we are a nation of laws not Kings. That’s when the Supreme Court decided they weren’t so sure and wanted to hear the case.
Instead of acting expeditiously, they delayed their rulings sufficiently to ensure that Mr. Trump will likely not be tried for his effort to overturn our last election before the next one takes place. And now, one of the Justices who will rule on this case is a partisan who tells ordinary Americans we are unreasonable if we see the flag he is waiving in our very faces.
Rep Jaime Raskin is proposing that the Justice Department petition the Court to force the recusal of its partisan members in the two current cases involving partisan issues. These are the Presidential Immunity case, and another about the applicability of laws used to convict the January 6th insurrectionists. Raskin recognizes the danger we are in, and yesterday had grave doubts the Court would act on its own to prevent the crisis. After today, there can be no doubt at all.
We stand at the eleventh hour. Not next year, not after the election, not before it no longer matters - in this very hour we must demand that the other Justices speak out. Loudly. And, even then, because we can no longer pretend this Court can save itself, let’s all join the call for the Justice Department to move forward as he suggests, and to further and demand that Congress to reform the Court.
Talk of “the eleventh hour,” is, I know, often overdone. The forces that have done so much damage to our country talk this way all the time, in large part to make any real use of the language seem trivial. Don’t take my word for it. Hamilton assured us the judiciary was the least dangerous branch of government because they lacked the power of the purse or any executive authority. But that was only true if the judiciary remained independent from the other branches of government and stood apart from partisanship. Were it otherwise, he said, we should have everything to fear. And so we do.
Are we approaching the point where the only corrective action is to use the purse and executive authority in ways this Court claims we cannot?
Who knows what Florida and Texas might do if the Court loses legitimacy? In blue states, if the Supreme Court ceases to matter, I can imagine Illinois would reinstate gun laws the court has voided in recent years. I can even see Congress deciding to reinstate the McCain-Feingold campaign finance reforms and asking the executive branch to enforce them. Many Americans would cheer to see Leonard Leo, Harlan Crow, and others held accountable the corruption so many believe they have caused.
I hope we do not come to this. There is a vanishingly small amount of time for the other Justices, for the Executive Branch via the Justice Department, and for Congress, to save the Court by sidelining Mr. Alito. The consequences of failure are immeasurable.