Justice Alito, Oxymoron

These are sad times for the American government. Congress is broken: the Senate is unable to agree on the most basic and even theoretically non-controversial matters; the nominal Speaker of the House is a supposedly god-fearing religious purist who thinks nothing of prostituting his office by appearing in the courtroom to show unconditional approval for his moral opposite. The Presidency . . .  well, the current election year speaks for itself; I especially appreciated Mitt Romney’s observation comparing the upcoming debates to the two old guys on the Muppets, a pair of grouchy old men constantly complaining from their balcony seats.

There are interwoven currents discernible throughout American history that  the courts tend to be a stabilizing force when the other two branches are at their weakest. For those of us raised in a tradition believing we survive in good measure because we are a nation of laws, at times like this we come to depend upon our courts for the preservation of our democracy -- and today our hopes are rapidly eroding. Today’s Supreme Court plainly is broken, perhaps beyond repair given the political paralysis which precludes any meaningful Court reform. We have an historically weak Chief Justice unable or unwilling to rein in his extreme right wing or support simple ethics reform perhaps to restore at least some of the Court’s integrity; he could well go down in history as the worst CJ since Roger Taney wrote the Dred Scott decision in 1857.

Allow me to take a time out for those who may have forgotten: Dred Scott was an enslaved man whose owner took him from a slave state to the free territory of Wisconsin and to Illinois, a free state. Scott sued in federal court, claiming this made him a free person; the Supreme Court differed, holding that as a black man Scott was not a “citizen of the United States” and had no right to access the federal courts and had “no rights which the white man was bound to respect.” A further aside: when you see a legal procedural tv show where lawyers supposedly address the Chief Justice as “Mr Chief Justice”, that’s wrong! He isn’t mister Chief Justice, correctly he’s Chief Justice (you don’t address your family physician as “Mr Dr”); the other eight are properly addressed in court as “Justice [name]”. And now back to our readily scheduled broadcast - -

To label the three folks elevated by Donald Trump as very very very conservative is the understatement of the day. In addition we have senior Justice Clarence Thomas, husband of Ginni who would vigorously and perhaps violently make America great again; Thomas brazenly accepts millions of dollars in perks from politically interested right-wing plutocrats and openly damns the city of his residence as a “hideous place,” preferring to ride around the country in  his luxury motor home also financed by a rich right-wing politically connected buddy.

And then we have the second oldest Justice, Samuel Alito, who in spite of his stellar education is without doubt one of the most intellectually tone-deaf people in public life today. Alito has characterized doctors who apply medically sound judgments to terminate a pregnancy as “abortionists” and their patients as “murderesses”; he justified his anti-abortion stance by citing a single thirteenth century errant English legal text (Bracton), wrongly claiming it signaled an “unbroken tradition” to outlaw abortion -- which it Bracton didn’t actually say. He has accused Senators who dared to sign on to a friend of the court brief as “bullying” the Supreme Court.  He argues that rights not “deeply rooted in the Nation’s history and tradition” are not real rights at all. Not much doubt he would have been firmly in the majority in the Dred Scott case. In a speech he accused liberals of constituting the principal threat to free speech in America. He implied during oral argument that a President should be immune from all possible criminal prosecution lest he refuse out of fear of prosecution to leave office when his term expires. And showing a truly mean-spirited side to his thinking, in another published opinion he famously has defended people of “sincerely held religious beliefs” who despise gay people, expressing a personal belief certainly not endorsed by the vast majority of the American public.  

Most recently Sam Alito has been exposed (with photo documentation) for flying an American flag upside down on a tall pole in his front yard shortly after the January 6 insurrection for two or three days! At the same time he was penning a dissent arguing the Supreme Court should have accepted the case seeking to establish Congressional power to decide that election. (Fortunately for the nation, the Court declined to hear that case.) When asked why he brazenly displayed a Trumpian symbol of the “stolen election” minority, did he claim it was done by mistake? No. Or because the nation is in peril from an external threat? Not at all. Did he claim it was a prank or a joke? No. Did he insist he didn’t agree with the sentiment? Sadly, no. He didn’t even apologize. What he did do was blame his wife! SHE did it, and he was powerless to do anything about it. And of course, Alito waits years until he’s caught out before trotting out the tired but flimsy excuse. This from the Justice who authored the Dobbs decision taking away from American women nationally the right to reproductive freedom. And why did this fiercely independent spouse, oblivious to the potential damage to her husband’s reputation, choose to display a brazenly extreme partisan symbol? According to the Justice himself it was because the neighbors had become “political” -- yes, that was Alito’s word for it, expressing no sense of irony whatsoever. And did this docile husband ever say to her, “dearest, you oughtn’t do that since I am, after all, a Justice of the United States Supreme Court and supposed to avoid any appearance of impropriety”? Apparently not.

Bret Stephens, conservative NY Times columnist, really nailed it, albeit in stating his disbelief: “I’ve never met either of the Alitos, but I have a pretty good idea that Justice Alito — whatever I think of his jurisprudence — would not be so colossally stupid as to risk his entire reputation, and maybe even his ability to rule on important cases, by hanging an upside-down flag.” Stephens buys into the “blame the wife” defense. But wait: now it emerges that the Alitos New Jersey beach house sported the “Appeal to Heaven” or Pine Tree flag, the same flag carried by pro-Trump Christian extremists on January 6^th at the Capitol. No comment from Alito this time; perhaps the wife won’t take the fall again. I wonder what Stephens will have to say in the Times about this new revelation.

To say that Alito is ethically challenged is a grave understatement. From his lofty perch during oral arguments he routinely spouts talking points proffered by Fox news -- and often even more far right sources -- in examining attorneys arguing cases before the Court, for example wrongly suggesting that the FDA never investigated the safety of mifepristone. This is the same Justice who earlier publicly stated that Congress has no authority to establish ethics standards for the Supreme Court. (Wrong!) Aside from the fact that it’s truly bad form for a Supreme Court Justice to make public statements opposing creation of an ethical framework for the Court, he was expressing an inflexible opinion about a subject bearing upon matters before the courts.  He sat for an Wall Street Journal interview by a lawyer for a party in a major tax case pending before the Court. This is a Justice who, like fellow extreme conservative Justice Clarence Thomas, also has openly accepted high-value holiday largess from extreme right-wing benefactors who had issues certain to come before his Court but not reported them in his mandatory financial disclosures.

Note the above photo as but one example, a vacation with a billionaire buddy who had a case pending before the Supreme Court; Alito justified his unreported multi-thousand dollar holiday by by later claiming the seat on the private jet to Alaska “otherwise would have been vacant”, so he didn’t do anything wrong by occupying it. He has been accused, with some evidence, of giving a head start to an influential friend by leaking the impending 2014 Hobby Lobby Supreme Court decision opening the floodgates of unregulated massive political donations and possibly, without direct evidence, being involved in the advance leak of the Dobbs decision which he authored overturning Roe v. Wade; in both unprecedented leak instances Alito just happened to be the one writing the majority opinion for the Court.

Am I showing disrespect for him personally? I fear so. Please believe me, though, when I say I do this out of a sad but deep regard for the history and tradition of the United States Supreme Court. Early in my legal career I actually had the personal honor of arguing a case before the Warren court. Edwards v. Pacific Fruit Express, 390 U.S. 538 (1968) for anyone interested; the less said of the outcome the better, although I did bring unanimity to a sometimes fractious bench.

While I personally believe Clarence Thomas has an ethical duty to recuse himself in cases involving Donald Trump individually not just because of the continuing open activities of the wife in support of Trump and efforts to overturn the 2020 election results but also from any case involving any of his financial benefactors, I believe Sam Alito on the other hand should be removed from the Supreme Court as totally unfit for the position and guilty of extremely unprofessional comments and conduct. That being extremely unlikely in this political lifetime, nothing can prevent Justice Alito from shooting off his mouth from his high perch in dissents or separate opinions -- or in his front yard -- so I fear we’re stuck with him, and respect for the Supreme Court will accordingly continue to erode.

So what are we to do. More and more voices are emerging arguing the powers of Supreme Court justices need to be circumscribed, perhaps by increasing the size of the Court, not specified in the Constitution but set by Congressional statute from time to time. Or perhaps term limiting Justices, which would be dicier since they have lifetime appointments, although mandatory retirement or transfer to senior status has been upheld in other settings. Keeping their title and status as senior Justices and paying their salaries and defining duties like supervising lower federal circuit court dockets but not routinely sitting on cases pending before the Supreme Court might pass muster. But imagine the disaster which may ensue if the law limiting the term of future Supreme Court appointees, duly passed by Congress and signed by the President, comes before the Supreme Court in a constitutional challenge! How do you suppose Justice Alito will vote.

And now a personal note: I hope my modest ramblings continue to amuse. If you aren’t receiving them by having subscribed to the Substack feed, please do so; this would also enable you to post notes and interact with other people’s notes. When you read a post, you should see a logo in the upper right corner; clicking on this logo should open a menu which includes the opportunity to subscribe to my future posts without necessarily having an unlimited Substack subscription and getting lots of other referrals (I hope). You can also read any previous posts in the archive should you have missed some or want to taunt your neighbor with one from the past -- maybe he’ll then fly his flag upside down. It’s free and always will be. I’d also be most grateful if you could invite a friend or two to  join our circle; I have no illusion of creating a salon as one friend queried, but I do believe the more people we can get thinking and talking about these issues in troubled times, the more likely liberal debate will survive.

 Arne Werchick, after fifty years as a litigation attorney, pro tem judge, law writer and lecturer, former Presiding Arbitrator of the State Bar of California, and past president of the California Trial Lawyers Association, moved to Hawaii and lives with his wife Ruth and their rescue dog Topaz.  He can be contacted at liberalmind@werchick.com.