“Confronted with this story, Justice Alito ran to a notoriously corrupt infotainment network to construct an alibi and deliver a version of events that later proved to be wildly inaccurate,” Bulwark editor Jonathan V. Last aptly put it. “In so doing, Justice Alito behaved like a cheap politician rather than a responsible, dispassionate jurist.”
The absurdity of Alito’s explanation for the flag-raising issue (which contradicts the timeline reported in The New York Times ) highlights the dangers of unchecked judicial power, unconstrained by term limits or proper ethics rules. (Meanwhile, Chief Justice John G. Roberts Jr. flatly refused the two senators’ requests to meet with him.) Congress, the executive branch, and the American electorate have five, not mutually exclusive, options for dealing with this problem:
First, Rep. Jamie Raskin (D-Md.), a constitutional law expert and former chief impeachment judge, has threatened to recuse himself from both Justice Alito and Justice Clarence Thomas, whose wife, Virginia, supported Trump’s efforts to overturn the results of the 2020 election.
“The Department of Justice, including the U.S. Attorney for the District of Columbia, an appointed U.S. special counsel and the attorney general, all of whom are differently involved in the criminal prosecutions underlying these cases and who disagree with Mr. Trump’s constitutional and legal arguments, can legally, but not necessarily, petition the other seven justices to recuse Justices Alito and Thomas,” Raskin wrote in an opinion piece in The New York Times last week.
Raskin based his argument on both the Due Process Clause of the 14th Amendment and 28 U.S. Code Section 455, a statutory injunction that judges “disqualify themselves from any proceeding in which their impartiality may reasonably be called into question.” Perhaps the two compromised justices will not consider the issue, leaving it to the other seven justices to rule on such motions, but who knows?
While such an approach would be important for educating the public about the Court’s apparent intellectual corruption, it has two obvious flaws. Frankly, it’s unlikely we’d get Attorney General Merrick Garland to do it; this Justice Department is not known for boldness, risk-taking, or leadership. Moreover, the four remaining conservative justices would almost certainly ignore the request. Still, it’s worth pursuing (including asking Garland to do it). something), I intend to litigate this case solely to draw attention to the misconduct of both justices and the extraordinary unwillingness of Justice Roberts.
The second, more realistic approach would be to hold hearings immediately in the Senate Judiciary Committee. Justices Alito and Alito could be called to testify under oath. Expert witnesses on judicial ethics could explain the damage caused to the court by their abhorrent refusal to act for apparently legitimate reasons. So far, the committee’s chairman, Durbin, has shown, to say the least, that he does not understand the importance of concentrating public opinion and rallying support for court reform. Perhaps Justice Alito’s unpleasant reaction last week will motivate him.
Third, as the White House has argued, the Senate should send the Supreme Court Ethics, Challenging, and Transparency Act of 2023 to the floor. It has already passed the Judiciary Committee.(Where’s Majority Leader Senator Charles E. Schumer?) The bill would “require Supreme Court justices to adopt a code of conduct, create a mechanism for investigating alleged violations of the code or other laws, increase disclosure and transparency when justices have ties to parties or amicus curiae, and require justices to explain their recusal decisions to the public.”
If Senate Republicans want to block a perfectly reasonable bill like this, Democrats should encourage them to filibuster on the Senate floor throughout the long, hot summer, which would be a surefire way to make court reform a top election issue.
The Republican-controlled House of Representatives would not take up the bill even if Senate Republicans agreed to a vote. Again, there is much to be encouraged in a campaign focused on a dysfunctional Republican House majority that cannot govern itself and does not want to hold the Supreme Court to the same ethical standards as other judges.
Fourth, if two opposing justices were to hear Trump’s immunity suit and create a mechanism to either grant him absolute immunity or create a lower court procedure that would prevent a trial before the November election, Americans could and should take part in large, peaceful demonstrations to uphold the rule of law. A president, much less a former president, is not a king. A partisan hack in a legal robe is still a partisan hack.
Just as the March for Women and March for Life bolstered public opinion and action even if they did not spur immediate legislative results, a March for Democracy will help galvanize public opinion and turn the election into a mandate for the Supreme Court.
Finally, if the above recommendations do not succeed in curbing Supreme Court arrogance, the groundwork will be laid for sweeping Supreme Court reform. If Democrats win the White House and win majorities in the House and Senate, no matter how slim the margins, all reforms and responses should be on the table. These could include impeaching Alito (especially if he ignores subpoenas), mandatory ethics rules, Supreme Court term limits, expanding the court, and more. (If necessary, Democrats will need to tweak the filibuster, which has been overused for too long, to get to work rebuilding a disgraced Supreme Court.)
Confidence in the Supreme Court has already fallen to historic lows in recent years, and if Justices Alito and Thomas stood by and acted on Trump’s behalf during his immunity suit, public support for bold reforms could soar.
Justices Alito and Thomas, combined with Justice Roberts’ ignorant passivity and inability to provide ethical leadership, have plunged the Supreme Court into crisis. But in doing so, they have opened the door to much-needed reform that could restore the Court’s luster. Defenders of the rule of law should seize this historic opportunity to rebuild a weakened and increasingly discredited institution.
