Here's the New York Times headline from just a few
hours ago.
Another provocative flag was flown at another Alito home.
Photographs Photographs obtained by the Times on four separate dates
show that the Appeal to Heaven flag was flown over
the New Jersey vacation home of Supreme Court Justice Samuel
Alito in the summer of
2023. Michelle, what was your reaction when you saw this
headline?
I mean,
on the one hand, completely predictable,
right? Justice Alito is exactly the person that a lot
of us fly one flag was fly another flag,
right? And he is, I mean,
my colleague Jamel Bowie wrote this call about how he's
a true believer,
right? He's not somebody, he's not a Fox News producer.
He's a Fox News watcher.
He's, you know, he has kind of very similar opinions,
I think, to a lot of other crankish men in
their 70s.
He just happens to have
lifetime unaccountable power over the Constitution of the United States
and has been extremely contemptuous of any
efforts to not just rein in that power,
but to enact a code of ethics,
you know, on the Supreme Court.
It's worth pointing out that the Supreme Court just under,
you know, pressure, just adopted a code of ethics that
said that justices should recuse themselves.
I don't know if I'm going to get the language
exactly right,
but I think when it can be reasonably inferred
that when, when, when, like when there might be reasonable
doubts about their impartiality,
something, something to that effect.
How can anyone reasonably believe that Justice Alito is remotely
capable of being impartial on a
around A cause that he cannot resist,
that he feels so strongly about that he cannot restrain
himself from,
you know, flying banners over multiple properties?
It, you know, Mark, the
Justice Alito's wife was blamed for the first flag incident.
I thought it was very telling that the justice had
nothing to say to the New York Times when asked
for comment.
What is your sort of immediate assessment of how damaging
this is to the court?
Well, I think the justice was caught red handed on
this one is not going to be able to shove
off blame to his wife.
My immediate reaction is that this is,
of course, a terrible look for Alito,
a terrible look for the Supreme Court on the eve
of yet another day when the justices will be handing
down opinions.
Tomorrow morning at 10:00 AM,
we will be getting major opinions in cases that could
involve things like abortion and gun control.
And Alito may well be providing the deciding vote in
some of those cases.
And the nation will now know that the guy who
tipped the scales one way or the other in some
of those cases also flew a flag intimately associated with
the insurrection at his beach house.
But I just want to say,
I feel like what's so damning here is that Justice
Alito has clearly broken these sort implicit contract that the
Supreme Court makes with the United States of America and
its citizenry. You know, the Supreme Court justices are supposed
to act with dignity and honor and impartiality,
not just because they derive their legitimacy from all of
that,
from their black robes, the simple black robes that show
they're just normal judges dispensing justice,
but because when they go badly awry,
we can't do anything about it.
We can't vote them out of office.
We can't recall them. There's virtually nothing that the American
people can do about a justice who's gone as lawless
and rogue as Sam Alito evidently has.
And so it almost sort of,
it can be compared to the British monarchy.
You know, the reason that it still exists in in
its current form is because Queen Elizabeth was able to
preserve this image of integrity and decency for so long
and the public respected it.
Alito is shattering those efforts by the rest of the
Supreme Court or some of the rest of the Supreme
Court.
It's not going into a lead to a good place
for them because again,
that really is the only place they derive their power
from.
They don't have an army to enforce their decisions.
When they lose respect, they lose authority.
Yeah, that's such a good point,
Mark. I mean, it almost it,
it almost feels like he's doing it 'cause he can,
because he knows that there is no accountability,
right? It is owning the libs in the most spectacular
fashion,
right? I mean, it's like,
who's gonna stop me? I mean,
I noticed that two of the things that Mark said,
he talked about the implicit bargain and that that the
Supreme Court has with the United States.
But part, I mean, with,
yeah, with the American people.
But part of Trumpism has always been to disregard all
of those implicit bargains,
right? All of those norms.
It's always been who's gonna stop me?
And so, you know, Justice Alito clearly could careless about
whether his exercise of power is seen as legitimate in
the eyes of people who disagree with him.
And I think that that is where it ties in.
You know, Justice Alito is a is a Catholic.
The New Apostolic Reformation is a kind of
species of of Pentecostalism, but in as much as they
see a kind of right to rule for certain citizens
with certain beliefs and a kind of,
you know, a lesser sort of citizenship for everyone else,
I think it very much fits in with this.
You know, who cares? It doesn't matter if you think
I'm fair or just or my authority is well exercised.
I have it. You don't.
Yeah. Not even trying to cloak it in some other
sort of broader notion of jurisprudence,
Mark, you know, the the assumption at this current hour
is that not much can be done about this.
We know that Chuck Schumer,
I believe this was earlier today,
before this New York Times story broke,
suggested that he is discussing where to go from here
with Senator Dick Durbin,
who is the chair of the Senate Judiciary Committee.
But practically speaking, I mean,
all roads lead to John Roberts.
If anything is meaningful is actually going to be done.
Or do you think Congress can enact something?
And I say that with an eye roll,
not intentionally, but reflexively. Well,
I know some House Democrats are saying if they take
back a majority,
that they will hold hearings on this,
they will investigate. I think that is a positive step
for anyone who wants accountability here.
I think it's very unfortunate when senators on the Democratic
side say,
well, we won't really be doing anything about this because
we don't have any meaningful options.
They'll ignore our subpoenas. The laugh in our faces that
only feeds into this arrogance that Justice Alito is riding
high on right now.
This sense, as Michelle noted,
that he is above every and that he's able to
flaunt it.
It's in our faces. You know,
Justice Alito is very cloistered.
He does not have anyone in his circle to puncture
this sense that he is above all public criticism and
equal to Trump in the sense that no one can
stop him because he has this sort of unlimited power.
And I, I think that if Democrats don't even bother
to try to puncture that sense of immunity that he
has,
if Democrats just give up and say,
well, we tried a few subpoenas,
they ignored them. So what can we do now that's
going to get Alito even further to the right?
It's going to push him to new extremes or at
least allow him to reach those extremes within his bubble.
And that is going to come out in his decisions.
We are watching his decisions become increasingly unhinged.
His questions from the bench are deranged at this point.
His opinions are infused with radical Christian nationalism.
If all Democrats can muster in a response to that
is a shrug,
then he will say, well,
I guess no one really is going to stop me.
And he will continue pulling the law in that very
dark in dangerous direction.
I mean, so well said.
And also, I mean, the I not the irony,
the danger of a judge acting with impunity on a
on the eve of potentially instilling in the next president,
potentially Donald Trump, absolute immunity.
I mean, the, the, the idea of representative democracy appearing
to dissolve before our very eyes.
And you know, Mark brings up and you bring up
the infusion of Christian nationalism.
When you look at what's happening in Congress,
you look at what's happening in the legislative branch vis
a vis the Republican Party,
you look what's happening in the judicial branch,
Two of the three branches of our government
have become, you know, hotbeds of Christian fundamentalism.
Well, right. And I think that the same thing will
follow the executive branch if Donald Trump is reelected because,
you know, he already has plans to bring in a
whole entourage of people.
I mean, Donald Trump is,
you know, not a practicing Christian,
although he might be a Christian nationalist in terms of
his beliefs and kind of who should be privileged in
our society.
But in he has plans to remake or the people
around him have plans to remake the entire
executive branch. And this is just a kind of tiny
example,
a symbolic example of what that looks like.
It's the sort of it's just completely unaccountable.
You know, we yes, maybe we had norms and standards
before,
but you know, you and what army is going to
enforce them.
You know, mark this, you know,
in the context of the broader history of the court,
this has been the project of the right wing since
Ronald Reagan.
And what is so astounding and to some degree appalling
is the way at which it is in full flower
40 years later,
a dedicated effort to reverse social progress,
dissolve the barrier between church and state,
and see a right wing takeover of the judiciary.
It almost seems complete on a night like this.
Absolutely. I think the great lesson that the Reagan administration
imparted on some of its younger foot soldiers like Mitch
McConnell,
who are now leading the Republican Party,
is if you capture the courts,
you don't even have to win elections.
You know, passing laws through democracy is really unwieldy.
It takes forever, it's expensive,
and those laws can be repealed.
Those lawmakers can be voted out.
But when a judge does it,
well, if you can't get that overturned on appeal because
the Supreme Court has been captured as well,
that's just the law of the land.
And it stay that way for decades.
This has indeed been the project.
And it does feel on a night like tonight,
like the project has succeeded.
But I'll say, you know,
for many decades, the conservative legal movement felt that they
were failing.
It took them nearly 50 years to overturn Roe.
A lot of progressives might be dispirited today,
but if they aren't playing the long game,
then they really aren't playing to win at all.