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

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

When Judge Samuel A. Alito Jr. responded last week to a letter from Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) urging his recusal from the immunity case involving the felon and former president Donald Trump, the justice’s response did not surprise, in a certain sense, his critics.

No one seriously believed Alito would walk away from Trump’s immunity case amid reports that two political flags flown at his homes had also been adopted by the Jan. 6, 2021, Capitol rioters who supported Trump. However, 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 affirming the constitutional right of his wife, Martha-Ann, to make her own decisions about flying the flag, demonstrated such unbridled arrogance that it suggests, as New York University law professor Melissa Murray put it, that he was “trolling” the United States.

“When confronted with this story, Judge Alito turned to a notoriously corrupt information and entertainment network to build his alibi. He then testified to a version of events that turns out to be wildly inaccurate,” said Jonathan V. Last, editor of the Bulwark, aptly. “In doing so, Alito has behaved not like a sober and responsible jurist, but rather like a small-time politician.”

The implausibility of Alito’s flag-raising account (which contradicts the chronology reported in the New York Times) underscores the dangers of unchecked judicial authority, not limited by term limits or proper ethical rules. (Meanwhile, Chief Justice John G. Roberts Jr. flatly rejected 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 lawsuit targeting both Alito and Justice Clarence Thomas, whose wife, Virginia, supported Trump’s effort to overturn the results of the 2020 election.

“The U.S. Department of Justice, including the U.S. attorney for the District of Columbia, a U.S.-appointed special prosecutor, and the attorney general, all of whom were involved in various ways in the underlying criminal proceedings to these cases and oppose constitutional policies and legal claims, they can ask 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. passed in a New York Times op-ed.

Raskin based his argument on both the due process clause of the 14th Amendment and Section 455 of 28 USC, the legal mandate that a judge “shall disqualify himself in any proceeding in which his impartiality may reasonably be questioned.” . Presumably, but who knows? – the two committed judges did not consider the matter, leaving the other seven judges to rule on such a motion.

Although this approach is important for educating the public about the court’s manifest intellectual corruption, it has two obvious flaws. To be frank, there’s a good chance Attorney General Merrick Garland will do it. This Justice Department is not known for its boldness, its risk-taking, or its leadership. Furthermore, the four remaining conservative justices would almost certainly ignore this request. Still, it’s worth moving forward (including demanding that Garland make something), if only to draw attention to the misconduct 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. Experts in judicial ethics could explain the harm to the court resulting from an egregious refusal to recuse when it is obviously justified. To date, Committee Chairman Durbin has, to put it mildly, failed to understand the importance of focusing public opinion and generating support for judicial reform. Perhaps Justice Alito’s unpleasant response last week will move you.

Third, as Whitehouse urged, the Senate should introduce its Supreme Court Ethics, Recusal, and Transparency Act of 2023. has already passed through the Judicial Committee. (Where is the 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 reasonable measure, Democrats should invite them to spend the long, hot summer filibustering on the Senate floor. It would be a sure way to make judicial reform a top issue in the elections.

The Republican-controlled House of Representatives would not take up the bill even if Senate Republicans agreed to vote. Once again, a campaign centered on a dysfunctional GOP majority in the House of Representatives, unable to govern itself and unwilling to hold the court to the same ethical rules that govern other judges, would have much to recommend it.

Fourth, if the two conflicting judges hear Trump’s immunity case, and if they invent a mechanism that extends absolute immunity to Trump or establishes a lower court process that makes a trial impossible before the November election, Americans can and should participate in mass negotiations, peaceful demonstrations in defense of the rule of law. A president, much less a former president, is not a king; Partisan hackers in bathrobes are still partisan hackers.

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

Finally, the above recommendations, if they fail to curb the arrogance of the court, would lay the foundation for comprehensive reform of the court. Should Democrats win the White House and obtain majorities in the House and Senate, however narrow, the full panoply of reforms and responses should be on the table. These could include impeaching Alito (especially if he refuses a subpoena), a mandatory code of ethics, term limits on the Supreme Court and expanding the courts. (If necessary, Democrats would need to adjust the long-abused filibuster to take on the task of fixing a disgraced court.)

Trust in the court has already fallen to historic lows in recent years; If Alito and Thomas take up Trump’s immunity case and support Trump in the balance, public support for bold reforms could well increase.

Alito and Thomas, coupled with Roberts’s clueless passivity and inability to exercise ethical leadership, have plunged the Supreme Court into a crisis. But they have opened the door to much-needed reforms that could restore the court’s luster. Defenders of the rule of law should seize this historic opportunity to rehabilitate a faltering and increasingly dishonorable institution.