SCOTUS Has Fallen

Welcome to the upside down.

Images courtesy of the NYT

Picture this: January 17, 2021, Alexandria, Virginia, just down the river from D.C. Nerves are raw. The attack on the Capitol happened just 11 days ago, and in four days President-elect Biden will be sworn in under heavy security. 

The Supreme Court is still deciding a case challenging the Pennsylvania election results. You look out your window, over at the home of Justice Samuel Alito and his wife Martha-Ann Bomgardner, and what you see shocks you.

The Alitos have hung the U.S. flag upside down. Your heart catches because you recognize this symbol right away: Many of the “Stop the Steal” insurrectionists carried upside-down U.S. flags when they stormed Congress. You cannot believe that a sitting Justice is openly displaying the same flag in solidarity.

You take photographs and report the matter, as do your neighbors. But you all know better than to give your names. The MAGA forces are violent, armed and dangerous. And they won’t hesitate to come after you and your family.

It took over three years for this story to come to light. But on Thursday, the New York Times reported the details. The Alitos had indeed hung the Stop the Steal flag, signaling political support for the man who had just incited the insurrection.

Today, I’ll take a closer look at this story, including Alito’s terse response and the torrent of criticism the story has rightfully provoked. The brazen partisanship and arrogant disregard for ethical norms, first by Justice Thomas and his wife Ginni and now by Justice Alito and his wife Martha-Ann, is without precedent in our political and judicial history. The corrupt Court must be reined in, and Democrats must do it.

More than Alito frightening

The New York Times asked Justice Alito to respond to its reporting. His emailed statement was terse, but in its few words he managed to throw his wife under the bus.

“I had no involvement whatsoever in the flying of the flag,” Alito wrote back. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” He was referring to a neighbor’s anti-Trump sign that contained an expletive.

What’s notable in this reply is what it does not contain. As The Daily’s Michael Barbaro observed, “Crucially, Alito doesn’t deny the flag was flying upside down, doesn’t deny its meaning, doesn’t express any disapproval for it and doesn’t disavow it.”

Alito also shows no remorse or regret for having permitted the flag to fly outside his house, even if we believe his story that it was his wife who hoisted it. It apparently flapped for several days in that position, according to emails between neighbors and their relatives reviewed by the Times. This was no “brief” placement. This was not done without Justice Alito’s full knowledge and at least tacit consent.

Perhaps it’s best at this point to note that Alito is not the only Justice with a highly partisan spouse who expressed sympathy for the January 6 rioters. Ginni Thomas, Justice Clarence Thomas’s wife, was active in the attempted coup as well, texting urgent messages to people like Chief of Staff Mark Meadows demanding that something be done to halt the peaceful transfer of power. She also wrote to Arizona legislators asking them to disregard and overturn the popular vote in that state and award its Electoral College votes to Donald Trump instead.

Are we to believe, given the radical partisan behavior of their spouses, that either Justice could sit in judgment of any Stop the Steal or January 6 related cases without the appearance of bias?

The standard for recusal

A brief word at this point about what the law and the Supreme Court’s own ethical rules, recently adopted and promulgated, actually say about the requirement to recuse.

Here’s the legal standard, set out in 28 USC Section 455:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

And here’s the relevant text from the Supreme Court’s own newly published ethical code:

A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.

When it comes to adjudicating January 6 and Stop the Steal cases, if flying the insurrectionists’ flag outside your own home, or being married to an actual January 6er, doesn’t rise to a level where a Justice’s “impartiality might reasonably be questioned” and produce “doubt that the Justice could fairly discharge his or her duties,” it’s hard to see what would, short of either Justice putting on a MAGA hat and breaking through the Capitol barriers himself.

The Court was still hearing an election challenge 

An actual ruling by the Court at the time demonstrates the ethical conflict and violations, played out in real time. During the period that the Alitos were flying their Stop the Steal flag in solidarity with the January 6 insurrectionists and Ginni Thomas was actively supporting a coup, the Court was still weighing a crucial election case out of Pennsylvania.

The Republican Party had sued the Secretary of State of Pennsylvania in an attempt to throw out mail-in ballots that were counted under a three-day extension granted by that state’s highest Court. Recall that this was during the height of the pandemic, and mail-in ballots were a key tool, used primarily by Democrats, to cast ballots safely. 

The ruling was 7-2 against the GOP not to hear the case. But there were two dissents. Any guesses as to who penned them?

Ding ding! Winner, winner, January 6er!

Both Justice Thomas and Justice Alito wrote public dissents to an otherwise unsigned SCOTUS denial of review of the case. They both would have granted certiorari in order to set rules around what future election laws and challenges would look like. And both wondered aloud what the Court might have had to do, had the Pennsylvania case had been outcome determinative of the 2020 election.

What, indeed. We would do well to take their words, and their flagrant violations of all ethical norms concerning recusal, as the clearest of warnings.

The Court is still hearing January 6 cases

Perhaps the most galling fact is that Justices Alito and Thomas are still both participating in the landmark decision governing former president Trump’s outrageous claims of absolute immunity from criminal prosecution. This includes the questionable decisions to grant review in the first place, to delay hearing the case until the very last day of the argument, and the majority’s expected gum-up-the-works opinion that will delay Trump’s trial until past the November election. 

The two Justices will also weigh in on the legality of using the obstruction of Congress statute in cases directly involving January 6 defendants—the same people, it must be noted, to whom their spouses demonstrated sympathy and solidarity. 

In both cases, it’s more than reasonable to question the Justices’ impartiality and expect them to disqualify themselves. In both cases, given these extraordinary circumstances, a reasonable and unbiased person would doubt either Justice could fairly discharge his duties.

And yet, with their partisan biases in full view, they are thumbing their noses at the recusal laws and very ethical codes they just signed onto. 

The fall of the Court

Another point, while I’m on the subject.

As Rachael Maddow noted last night, it is unacceptable, not to mention craven, for Justices Alito (and for that matter, Justice Thomas) to simply shrug and say to the public, “Blame my wife.” Judges and their spouses and families are all well aware of the rules of conduct for judicial officers, which don’t permit the display of political symbols. Not bumper stickers, not window placards, not yard signs, and certainly not a Stop the Steal flag raised high like a middle finger to the country from the front yard of one of its High Court justices.

Indeed, as the Times report notes,

The court has also repeatedly warned its own employees against public displays of partisan views, according to guidelines circulated to the staff and reviewed by The Times. Displaying signs or bumper stickers is not permitted, according to the court’s internal rule book and a 2022 memo reiterating the ban on political activity.

These partisan activities, along with the string of financial scandals involving Justice Thomas’s billionaire benefactors, have now become a matter of legitimacy for the entire Court. And it is up to Chief Justice Roberts to move quickly to solve the problem. After all, what good is a shiny, new ethical code if the most corrupt and unethical justices simply refuse to abide by it right out the gate?

If Chief Justice Roberts does not act—and there is no indication that he will—then Democrats in Congress must move to check the Court’s excesses, corruption and violations of ethical codes and laws. Congress is not without power to regulate the Court, despite what Justice Alito believes. Hearings, investigations and impeachments are in order. Failure to hold the Justices accountable for their behavior will lead to further erosion of trust and confidence in the courts. And following that, Congress must weigh massive judicial reform, up to and including term limits and the expansion of the Court itself.

The disintegration of trust in the judiciary is a flashing warning sign for any democracy that relies upon the courts to check the excesses of the other branches and to uphold constitutional safeguards. When the Supreme Court has become nothing more than a political arm for one of the major parties, as this Court now has, that important check disappears. Worse still, the very laws which once protected rights, liberties and the proper functioning of government quickly become a tool for the party in charge to bludgeon its opponents and hang on to power.

Reform of the Court would require electoral victories sufficient to hand full control of Congress and the White House to Democrats, with enough senators also willing to eliminate or modify the filibuster rule. But nothing is preventing Democrats in the Senate today from launching inquiries, and we are finally seeing the Judiciary Committee demand transparency around Justice Thomas’s taxes and finances. 

This November, the future of the entire Court is in the hands of the voters. Justices Alito and Thomas are both in their 70s and could well retire in the next four years. Should Trump be reelected and Democrats lose the Senate, an extremist conservative majority could be locked in for another generation.

On the other hand, if there are retirements by Alito and Thomas, a Democratic White House and Senate could flip the composition of the Court back to a 5-4 liberal majority and restore the integrity of the Court, which has been badly tarnished by these radical Justices. Such an opportunity comes along very rarely, but it is ours to seize if we can muster the votes and electoral victories to get there.