Supreme Court Chief Justice Samuel Alito has had a rough month.
On May 16, the New York Times published an article detailing how in January 2021, an upside down US flag was flown at the household of Alito and his wife, in the wake of a pro-Donald Trump attack on the US Capitol to stop the confirmation of the Electoral College vote, an attack in which several protestors carried not only white nationalist flags and Confederate flags but the upside down US flag. This week another NYT article detailed how one of Alito’s other homes had flown an “Appeal to Heaven” or Pine Tree Flag during the summer of 2023, a flag that is also used by Christian nationalists and is presented outside the office of current House Speaker Mike Johnson (BR.- Moscow Oblast).
Now the upside-down flag, like the Gadsden Flag, was in past times used by left-wing Vietnam-era protestors, not to mention libertarians, but nowadays they have been co-opted by the “freedom lovers” who think that slavery is okay as long as it’s to Trump, or Putin.
More immediately, Alito, and the rest of the conservatives on the Court, continued to show a consistent pattern this week with the Thursday decision on Alexander vs. South Carolina State Conference of the NAACP, ruling in favor of the South Carolina government’s redistricting of state territory to dilute black majority neighborhood votes and increase the Republican majority in coastal districts. Alito, who wrote the opinion, stated that the lower court ruling that “race predominated in the design of District I in the Enacted Plan was clearly erroneous” and that in keeping with prior decisions, even if partisan gerrymandering violates the Constitution, it presents political questions beyond the federal court system to decide, and since this is (apparently) not a race-based gerrymander, the Supreme Court cannot interfere.
Begging the question, why is that any more fair or why there should be any mandate to restrict the votes of any community, racially comprised or not. It would be just as arbitrary to restrict the votes of a white community composed of Masons, Seventh-Day Adventists or Star Trek fans, and I’m sure that if such a case ever went to the courts, judges would dismiss it as ridiculous. But when it comes to restricting the votes of one of our only two “real” parties, and one that happens to be the predominant choice of a racial minority, somehow that’s okay.
And Clarence Thomas, as he does, went on to say the quiet part really loud. In his concurrence Thomas went farther than Alito, who seemed at pains to disassociate the abstraction of the legislation from its racial impact, to say that Brown vs. Board of Education was “a boundless view of equitable remedies” and ought to be reviewed.
As I said earlier, “In the Dobbs case, Justice Samuel Alito decided that the Fourteenth Amendment due process standard did not apply in the case of abortion and that there had been no legal precedents or language in the original Constitution allowing it. Now, while many right-wingers have objected that the result of Roe v. Wade created a federal standard when the abortion issue should have been left to the states, Alito’s position blanks out the point that we had a Fourteenth Amendment in the first place because we already tried leaving the issue of slavery up to the states and that didn’t work out. Which brings up the relevant point that if the Reconstruction Amendments were meant to correct an institutional racism that had more precedent in American law than the standard going forward, and Alito has decided that these amendments do not apply to women because there was no previous historical standard protecting abortion rights, then there’s all kinds of things they don’t have to apply to.”
It would be one thing if the Alito Court were cutting away New Deal precedents and “penumbras” of a “living document” that aren’t actually stated in legislation or constitutional amendments, but as we can see in Dobbs and several other cases (including the 14th Amendment question of whether an insurrectionist can run for president or whether a president can be made immune to any prosecution, despite all precedent), SCOTUS is ignoring not only the spirit but the actual words of the laws. And not laws from FDR or LBJ eras, but laws created in the 19th Century. Back when the anti-slavery party was Republican.
That leads into the whole matter of creating presidential immunity, and one would think that even Thomas and Alito wouldn’t create a presidency that is effectively above them and would make their own jobs obsolete, but Alito in particular seems besotted with the idea that the laws don’t count if they go against Trump. What small costs are dignity, independence and the protection of laws compared to the chance to serve at the feet of our eternal Lord and Master, and bask in the radiance of His supernaturally bronze skin?
The real problem is that with a president or legislator you could try to correct such malfeasance by kicking them out of office, but you can’t do that with a Supreme Court Justice, and the contempt of Alito in his recent behavior is that he is acting precisely in awareness of this. This is why every other major office in the Constitution is subject to election and even local judges are normally elected by the public in limited terms, as opposed to being a monarchy or College of Cardinals. But, we have decided that such a judiciary is necessary in order to be above partisanship. The problem arises when the justices are appointed by partisan politicians to serve partisan ends and Republicans in particular start court processes in preference to their own legislation because they aren’t subject to popular vote.
That being the case Democrats are weighing their options. Thomas and Alito are not going to recuse themselves on anything, and given that the Charleston decision was 6 votes against three liberal dissents, it wouldn’t matter if only the two most obviously corrupt justices were taken out. It has been suggested in the wake of Alito’s partisanship that at least one house of Congress call the justices for testimony on their decisions, apparently on the assumption that the liberals will do so even if the conservatives refuse. That’s a good idea, but I have an idea that’s a little more… provocative.
Recently I also said that we need to call Trump’s – and Alito’s – bluff on the matter of presidential immunity. “Common sense (which granted seems to be in short supply at the Alito Court) indicates that the ruling doesn’t apply to just Trump. Ask these people if all these hypotheticals they are blithely discussing would apply in the abstract to Joe Biden. … Could Joe Biden, the day after presidential immunity was created by SCOTUS, then immediately declare Dobbs v. Mississippi to be null and void and sign an executive order making the previous Roe v. Wade standard nationwide again?”
Why wait?
I think President Biden should sign an executive order now to do what his party is talking about and federalize the provisions of Roe v. Wade, specifically that abortion is legal up to the point of “quickening” or fetal viability, and have that enforced nationwide by the Justice Department.
Because for one thing, that would oblige the Alito Court to make a decision.
As I also said: “Because even if nobody in this case is arguing that the President’s authority allows him to destroy the balance of powers and nullify a SCOTUS ruling, what would THEY be able to do about it, if they themselves have declared that anything the president does cannot be prosecuted (short of impeachment and removal from office, which would require a two-thirds vote of the Senate, including Democrats, meaning, IT’S NEVER GOING TO HAPPEN), just as long as he says the two magic words “official act“, which will strike him with a lightning bolt and give him superpowers?”
That is in fact the situation right now. If, even prior to Alito ruling in favor of Trump’s position (which of course he is not going to unless the election ends up in Trump’s favor) the current president takes a pen and wipes out Alito’s (and Trump’s) main judicial legacy, what alternative is there except to press an impeachment? I’m sure that Johnson’s House would be glad to do so as everyone forgets for a moment how much they all hate Marjorie Taylor, Matt Gaetz and Mike Johnson. But again, impeachment is never going to work because it requires two-thirds of the Senate to convict, it is currently 51-49 Democrat, and that means Republicans would need to pull away 18 Democrats – over one-third of the delegation – to vote against their President on an issue that they have been wedded to ever since Dobbs.
What other way would there be except to rule that the President IS subject to law and there ARE other legal means to stop him from going too far?
And let me be clear: That WOULD be going too far. To act directly against a Court ruling would not only be to overrule the prerogatives of the judiciary but the prerogatives of the legislature, which as conservatives have told us should have made the standard on federal abortion rights in the first place, as opposed to SCOTUS “legislating from the bench” in Roe. That is for one thing why Democrats are talking about creating federal legislation to that effect as opposed to going to a Court that is not theirs and that they will not soon be able to get back.
Which is why Biden’s executive order should also come with a detail.
It should be time-limited to apply only through the date December 31, 2024, since everybody knows that if Donald Trump gets re-elected he can immediately reverse the order. There would also be a gap between January 1, 2025 and the inauguration on January 20, so if Democrats care about making this work they need to not only re-elect Joe Biden but make damn sure that Trump and his Meal Team Six can’t try again to do what they did on 2021. For one thing I presume Biden will not be making sure that local law enforcement and Capitol Police are suspiciously without reinforcement on January 6.
So that, if the Democrats want this override to actually last, they need to do the constitutional thing and draft that legislation, and have it ready to go by the time of the Democratic National Convention and campaign on it. Oh, and while they’re at it, they should draft legislation mandating that the Supreme Court is under the same ethics codes as lower courts, and expanding SCOTUS to 13 members (one for each District) AND giving them term limits. And campaign on THAT.
(Incidentally, this would also call the Democrats‘ bluff and force them to address the issue seriously, rather than keeping it as a political football the way Republicans did with their constituents for years before Dobbs.)
Put this Court on the ballot. Because whether anyone admits it or not, it already is.
The last time a president (a Democrat) seriously tried a court-packing scheme to change a hostile Court, it was widely considered a failure. After the Supreme Court ruled several times against Franklin Roosevelt’s New Deal bills, in 1937, Roosevelt supported a Judicial Procedures Reform Act. This would have allowed the President to appoint one new Justice to the Court for every current member who was over the age of 70, and at that time, that would have been six more Justices. This was rightfully seen as court-packing and obviously intended to achieve a partisan result, and the legislation died on the vine as even Democrats went against their president on the matter. But the joke is that the proposal failed, but not really. Shortly after the proposal, the Supreme Court ruled for the liberal position on West Coast Hotel Co. v. Parrish with a 5-4 margin as Justice Owen Roberts, who had ruled often against the liberals, agreeing with a Washington state law establishing a minimum wage. Popular wisdom called this “the switch in time that saved nine” although deliberations on the case had been made before FDR’s court-packing scheme. “Chief Justice Hughes wrote in his autobiographical notes that Roosevelt’s court reform proposal ‘had not the slightest effect on our [the court’s] decision’, but due to the delayed announcement of its decision the Court was characterized as retreating under fire. Roosevelt also believed that because of the overwhelming support that had been shown for the New Deal in his re-election, Hughes was able to persuade Roberts to no longer base his votes on his own political beliefs and side with him during future votes on New Deal related policies. In one of his notes from 1936, Hughes wrote that Roosevelt’s re-election forced the court to depart from ‘its fortress in public opinion’.” This also meant that such radical legislation as Roosevelt proposed was really not necessary.
That also meant that those justices, such as Willis Van Devanter, who wanted to retire did so without the expectation that they would be replaced by a conservative, and over the years FDR managed to make additional appointments that created a friendlier Supreme Court. Of course, part of this was because he had the time to do so. Roosevelt was elected four times, against the previously unwritten tradition that a president would only serve two terms, and died in 1945, very old and frail, shortly after his last re-election. And after his death, largely Republican-sponsored legislation quickly led to the Twenty-Second Amendment to the Constitution, specifying that no person can be elected President more than twice or in any event serve more than ten years including time as acting President. In the Wikipedia article on the Amendment, it was noted that the founding presidents felt a two-term limit to be practical considering the factors of time and aging, with Thomas Jefferson writing in an address, “If some termination to the services of the chief magistrate be not fixed by the Constitution, or supplied by practice, his office, nominally for years, will in fact, become for life; and history shows how easily that degenerates into an inheritance.”
The terms of the Supreme Court justices, like their number, and their code of ethics or lack thereof, are not set by the Court itself, all present conduct aside. They are traditionally set by Congress. The size of the Court was only set at nine after the Judiciary Act of 1869, and had previously been changed no less than six times in the nation’s history, usually for partisan reasons. As it is, two of Donald Trump’s three Supreme Court appointments were because of the deaths of Antonin Scalia, who had health conditions, and Ruth Bader Ginsburg, who was very old and frail. Ironically, FDR’s court-packing scheme failed because it was easily seen as an attempt to unbalance the American separation of powers, while the creation of presidential term limits directly after his death was deemed necessary to enforce a limit that previous men had been willing to enforce on themselves.
But now, frankly, it’s the other way around.
You’re at WAR, Democrats.
At some point, you should try shooting back.