Opinion | Alito’s response to the flags controversy invites these five responses

When Justice Samuel A. Alito Jr. responded last week to a letter from Senators Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) requesting his recusal from the immunity case involving a felon and former President Donald Trump, the justice’s response did not, on a certain point, surprise his detractors.

No one seriously believed Alito would walk away from Trump’s immunity case amid reports that two political flags flown at his homes were also adopted by the January 6, 2021 Capitol rioters supporting Trump. Nonetheless, Alito’s response – in a letter to Durbin and Whitehouse and in an interview with Fox News – laying out his improbable version of events and asserting the constitutional right of his wife, Martha-Ann, to make her own decisions, showed such unbridled arrogance that it suggests, as New York University law professor Melissa Murray put it, that he was “trolling” America.

“When confronted with this story, Justice Alito ran to a notoriously corrupt infotainment network to build his alibi. He then testified to a version of events that turned out to be wildly inaccurate,” Jonathan V. Last, editor-in-chief of the Bulwark, aptly said. “In doing so, Alito behaved not like a responsible and sober lawyer, but like a low-budget political hacker. »

The implausibility of Alito’s flag-raising account (which contradicts the timeline reported in the New York Times) underscores the perils of unchecked judicial authority, unconstrained by term limits or adequate ethical rules. (Meanwhile, Chief Justice John G. Roberts Jr. flatly refused the two senators’ request for a meeting.) Congress, the executive branch, and American voters have five non-mutually exclusive options for addressing this issue.

First, constitutional law guru and former impeachment manager Rep. Jamie Raskin (D-Md.) suggests a recusal request to both Alito and Justice Clarence Thomas, whose wife, Virginia, has supported Trump’s efforts to overturn the results of the 2020 election.

“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 various ways in the criminal prosecutions that gave rise to these cases, and oppose Mr. Trump’s constitutional laws and policies. statutory claims — can ask the other seven justices to demand that Justices Alito and Thomas recuse themselves not by mercy but by right,” Raskin wrote last week in a New York Times opinion piece.

Raskin based his argument on both the Due Process Clause of the 14th Amendment and USC Section 455, the legal mandate that a judge “shall disqualify himself in any proceeding in which his impartiality could reasonably be called into question. Presumably – but who knows?! – the two compromised judges will not consider the question, leaving the other seven judges to rule on such a motion.

While such an approach is important for educating the public about the Court’s clear intellectual corruption, it has two obvious flaws. To be frank, there’s a good chance that Attorney General Merrick Garland will. This Justice Department is not known for its boldness, risk-taking or leadership. Moreover, the four remaining conservative justices would almost certainly reject this request. Still, it’s worth pursuing (including demanding that Garland do something), if only to draw attention to the malfeasance of the two judges and to Roberts’ singular lack of courage.

A second, more practical approach would be an immediate Senate Judiciary Committee hearing. Both Alitos could be called to testify under oath. Expert witnesses in judicial ethics could explain the damage done to the court by a blatant refusal to challenge when it is clearly justified. So far, committee Chairman Durbin has, to say the least, failed to understand the importance of mobilizing public opinion and building support for court reform. Perhaps Justice Alito’s abhorrent response last week will move him.

Third, as Whitehouse urged, the Senate should introduce its Supreme Court Ethics, Recusal, and Transparency Act of 2023. already passed by the Judicial Committee. (Where is Majority Leader Senator 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 judge has a connection with a party or amicus before the Court; and require judges to explain their recusal decisions to the public.

If Senate Republicans want to filibuster such a perfectly reasonable measure, Democrats should invite them to spend the long, hot summer filibustering the Senate. This would be a surefire way to make judicial reform a priority issue in elections.

The Republican-led House would not pass the bill even if Senate Republicans agreed to a vote. Then again, a campaign centered on a dysfunctional Republican majority, incapable of governing itself and unwilling to hold the court to the same ethical rules that govern other justices, would have much to recommend it.

Fourth, if the two feuding justices hear Trump’s immunity case, and if they concoct a mechanism that either extends absolute immunity to Trump or sets up proceedings in a lower court making a trial before November’s elections, Americans can and should engage in massive, peaceful protests in defense of the rule of law. A president, much less a former president, is not a king; Partisan hacks in dresses are still partisan hacks.

Just as the Women’s March and the March for Our Lives strengthened public opinion and activism, even without provoking an immediate legislative outcome, a March for Democracy would help galvanize public opinion and turn the election into a court order.

Finally, the above recommendations, if they fail to curb the court’s arrogance, would pave the way for comprehensive court reform. If Democrats win the White House and majorities in the House and Senate, however narrow, the full range of reforms and responses should be on the table. These could include Alito’s impeachment (especially if he rejects a subpoena), a mandatory ethics code, term limits on the Supreme Court, and court expansion. (If necessary, Democrats should adjust the filibuster that has been abused for too long to deal with fixing a court in disgrace.)

Confidence in the Court has already reached historic lows in recent years; If Alito and Thomas sat down on Trump’s immunity case and put their thumb on the scale in his favor, public support for bold reforms might well increase.

Alito and Thomas, coupled with Roberts’ clueless passivity and inability to exercise ethical leadership, threw the Supreme Court into crisis. But they have thus opened the door to essential reforms which could restore the Court to its glory. Rule of law advocates should seize this historic opportunity to rehabilitate a faltering and increasingly disreputable institution.

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