“When confronted with this story, Justice Alito ran to a notoriously corrupt infotainment network to construct his alibi. He then testified to a version of events that turns out to be wildly inaccurate,” Jonathan V. Last, editor of the Bulwark, aptly put it. “In so doing, Alito has behaved not like a responsible, sober jurist, but a dime-store political hack.”
The implausibility of Alito’s account regarding the flag-flying (which contradicts the timeline reported in the New York Times) underscores the perils of unchecked judicial authority, not constrained by term limits or adequate ethical rules. (Meanwhile, Chief Justice John G. Roberts Jr. flatly refused the two senators’ meeting request.) Congress, the executive branch and American voters have five non-mutually exclusive options for dealing with this matter.
First, constitutional law guru and former impeachment manager Rep. Jamie Raskin (D-Md.) suggests a recusal demand directed at both Alito and Justice Clarence Thomas, whose wife, Virginia, supported Trump’s effort to overturn the 2020 election results.
“The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law,” Raskin wrote last week in a New York Times opinion article.
Raskin based his argument on both the due process clause of the 14th Amendment and 28 U.S.C. Section 455, the statutory mandate that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Presumably — but who knows?! — the two compromised justices would not consider the matter, leaving the other seven justices to rule on such a motion.
Although such an approach is important for educating the public about the manifest intellectual corruption of the court, it has two obvious flaws. To be blunt, fat chance getting Attorney General Merrick Garland to do it. This Justice Department is not known for its boldness, risk-taking or leadership. Moreover, the four remaining conservative justices would almost certainly brush aside this request. Still, it is worth pursuing (including the demand for Garland to do something), if for no other reason than to call attention to the two justices’ malfeasance and to Roberts’s singular lack of spine.
A second, more practical approach, would be an immediate Senate Judiciary Committee hearing. Both of the Alitos could be called to testify under oath. Expert witnesses on judicial ethics could explain the damage to the court resulting from an egregious refusal to recuse when obviously warranted. To date, the committee’s chairman, Durbin, has, to put it mildly, not grasped the importance of focusing public opinion and generating support for court reform. Perhaps Justice Alito’s obnoxious response last week will stir him.
Third, as Whitehouse urged, the Senate should put on the floor his Supreme Court Ethics, Recusal and Transparency Act of 2023. It already passed through the Judiciary Committee. (Where is Majority Leader Sen. Charles E. Schumer?) This bill would “require Supreme Court Justices to adopt a code of conduct; create a mechanism to investigate alleged violations of the code of conduct and other laws; improve disclosure and transparency when a Justice has a connection to a party or amicus before the Court; and require Justices to explain their recusal decisions to the public.”
If Republicans in the Senate want to filibuster such an entirely reasonable measure, Democrats should invite them to spend the long, hot summer filibustering on the Senate floor. It would be a surefire way to make court reform a top-tier issue in the election.
The Republican-run House would not take up the bill even if Senate Republicans agreed to a vote. There again, a campaign focused on a dysfunctional GOP House majority unable to govern itself and unwilling to hold the court to the same ethics rules that govern other judges would have much to recommend it.
Fourth, if the two conflicted justices hear Trump’s immunity case, and if they concoct a mechanism that either extends absolute immunity to Trump or sets up a lower-court process making impossible a trial before the November election, Americans can and should engage in massive, peaceful demonstrations in defense of the rule of law. A president, let alone an ex-president, is not a king; partisan hacks in robes are still partisan hacks.
Just as the Women’s March and the March for Our Lives fortified public opinion and activism, even without prompting an immediate legislative result, a March for Democracy would help galvanize public opinion and turn the election into a mandate on the court.
Finally, the recommendations above, if unsuccessful in curbing the court’s arrogance, would set the stage for wholesale court reform. Should Democrats win the White House and majorities in the House and Senate, no matter how narrow, the entire panoply of reforms and responses should be on the table. Those could include Alito’s impeachment (especially if he snubs a subpoena), a mandatory ethics code, Supreme Court term limits and court expansion. (If need be, Democrats would need to adjust the too-long abused filibuster to attend to the job of fixing a disgraced court.)
Confidence in the court has already sunk to historic lows in recent years; should Alito and Thomas sit on the Trump immunity case and put their thumbs on the scale for him, public support for bold reforms may well surge.
Alito and Thomas, coupled with Roberts’s clueless passivity and inability to exert ethical leadership, have plunged the Supreme Court into a crisis. But they have thereby opened the door to much-needed reforms that could restore the court’s luster. Defenders of the rule of law should grasp this historic opportunity to rehabilitate a faltering, increasingly disreputable institution.
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