What more need Alito do before Durbin gets off the stick?
Passivity in the face of Supreme Court corruption is unacceptable.
One wonders what more Supreme Court Justice Samuel A. Alito Jr. need do to defile the court’s reputation before Senate Judiciary Committee Chairman Sen. Dick Durbin (D-Ill.) will do something more than issue a terse tweet or letter.
After the New York Times reported on an upside-down flag identified with the Jan. 6 insurrectionists flying over Alito’s Virginia home in the days after Jan. 6, Durbin responded that he didn’t have “anything planned” in response. No hearing? No bill ready to go? Nope.
“I think [Alito’s] explained his situation. The American public understand what he did,” Durbin proclaimed, as if Alito’s excuses were the definitive explanation for a gross breach of judicial ethics. “But I don’t think there’s much to be gained with a hearing at this point. I think he should recuse himself from cases involving Trump and his administration.” And if Alito doesn’t recuse, Durbin cannot find any “recourse other than impeachment, and we’re not at that point at all.” That weak-kneed response would not be Durbin’s worst on Alito this week.
When a second flag was discovered flying, this time over Alito’s New Jersey home, the Times reported that the “Appeal to Heaven” flag in question was also “carried by rioters at the Capitol on Jan. 6, 2021” and “is now a symbol of support for former President Donald J. Trump, for a religious strand of the ‘Stop the Steal’ campaign and for a push to remake American government in Christian terms.” And this symbol of Christian nationalism was aloft Alito’s house in 2023.
With a second flag story, Durbin got huffy on social media. “This incident is yet another example of apparent ethical misconduct by a sitting justice, and it adds to the Court’s ongoing ethical crisis,” he tweeted. “Justice Alito must recuse himself immediately from cases related to the 2020 election and the January 6th insurrection.”
In response to Durbin’s empty words, constitutional scholar Laurence Tribe declared that the issue was no longer “just about the insurrection-abetting Sam Alito, [but] about the AWOL Senator Durbin.” Tribe added, “He has no excuse for not holding hearings about Alito now.”
After all, Alito cannot very well blame his wife or another rude neighbor for this violation of the principle of judicial impartiality. The second flag not only sheds doubt on the veracity of the first round of excuses; it suggest he harbors an affinity for an antidemocratic group that defines the United States as a White Christian country, repudiates the division between law and Christian dogma and views the United States as under siege from secular forces. At the very least it suggest the appearance of such partiality. That is a gigantic problem for a justice who is required by statute to be and appear impartial. On issues involving the establishment of religion, gay rights and abortion, litigants opposing the Christian nationalist viewpoint should not have confidence they are dealing with a fair and impartial court.
Durbin inadvertently revealed in a statement just how derelict he has been:
The Senate Judiciary Committee has been investigating the ethical crisis at the Court for more than a year, and that investigation continues. And we remain focused on ensuring the Supreme Court adopts an enforceable code of conduct, which we can do by passing the Supreme Court Ethics, Recusal, and Transparency Act.
More than a year?! (Well, at least we know he has remained “focused” on ethics reform.)
Alito’s misconduct also brings Chief Justice John G. Roberts Jr., who heads an entire branch of government, to an inflection point. If he does nothing, Roberts is complicit in the destruction of the court’s reputation. Such spinelessness might even snatch from Roger B. Taney, the author of the majority opinion in Dred Scott, the title of “worst chief justice ever.”
In one sign the pressure on Durbin is building, he and Judiciary Committee member Sen. Sheldon Whitehouse (D-R.I.) released a letter to Roberts imploring him to make certain that Alito recuses himself “in any cases related to the 2020 presidential election and January 6th attack on the Capitol, including the question of former President Trump’s immunity from prosecution.” They requested a meeting with Roberts “as soon as possible.” They continued, “Until the Court and the Judicial Conference take meaningful action to address this ongoing ethical crisis, we will continue our efforts to enact legislation to resolve this crisis.” Though Roberts is unlikely to agree, a refusal might then spur Durbin into taking meaningful action.
To be blunt, Durbin’s oath of office to protect the Constitution demands he do something. And Alito’s grotesque malfeasance tests not only Durbin, but also Senate Majority Leader Charles E. Schumer (D-N.Y.). His credibility and fidelity to his oath remain in question unless he can push Durbin to take real action.
Without hearings, no short-term response (e.g. passage of ethics reform, investigation of any grounds for impeachment) or medium-term fix (e.g. elevating the Supreme Court as a voting issue) to Alito’s bias — and his affinity for an anti-constitutional movement that his oath of office obliges him to oppose — can be attained.
The long-term imperative must be to educate the public about the extent to which the court has been compromised. Only then can democracy defenders build consensus for serious reform such as term limits or the appointment of additional judges to rebalance the court and restore its stature. That process should begin now.
Furthermore, when a future court (soon, we hope) reexamines some of the era’s most reckless, precedent-wrecking and historically cherry-picked cases, the questionable legality of justices sitting on cases in violation of legal recusal requirements (28 U.S.C. §455) should be a valid consideration in determining the opinions’ precedential value. Put differently, overtly ideological, biased judges may have muscled through radical opinions, but that does not mean we should take the tainted pronouncements of robed partisans as the definitive word on controversial topics.
Alito’s misconduct, if unaddressed, would make the 2024 election a referendum on the court. Barring a sufficient response from Alito and Roberts, voters will be left to decide how to rehabilitate the court, rid it of the stench of scandal and insulate it from MAGA extremists. Democrats must be prepared to offer solutions.
Alito’s misconduct also brings Chief Justice John G. Roberts Jr., who heads an entire branch of government, to an inflection point. If he does nothing, Roberts is complicit in the destruction of the court’s reputation. Such spinelessness might even snatch from Roger B. Taney, the author of the majority opinion in Dred Scott, the title of “worst chief justice ever.”
In one sign the pressure on Durbin is building, he and Judiciary Committee member Sen. Sheldon Whitehouse (D-R.I.) released a letter to Roberts imploring him to make certain that Alito recuses himself “in any cases related to the 2020 presidential election and January 6th attack on the Capitol, including the question of former President Trump’s immunity from prosecution.” They requested a meeting with Roberts “as soon as possible.” They continued, “Until the Court and the Judicial Conference take meaningful action to address this ongoing ethical crisis, we will continue our efforts to enact legislation to resolve this crisis.” Though Roberts is unlikely to agree, a refusal might then spur Durbin into taking meaningful action.
To be blunt, Durbin’s oath of office to protect the Constitution demands he do something. And Alito’s grotesque malfeasance tests not only Durbin, but also Senate Majority Leader Charles E. Schumer (D-N.Y.). His credibility and fidelity to his oath remain in question unless he can push Durbin to take real action.
Without hearings, no short-term response (e.g. passage of ethics reform, investigation of any grounds for impeachment) or medium-term fix (e.g. elevating the Supreme Court as a voting issue) to Alito’s bias — and his affinity for an anti-constitutional movement that his oath of office obliges him to oppose — can be attained.
The long-term imperative must be to educate the public about the extent to which the court has been compromised. Only then can democracy defenders build consensus for serious reform such as term limits or the appointment of additional judges to rebalance the court and restore its stature. That process should begin now.
Furthermore, when a future court (soon, we hope) reexamines some of the era’s most reckless, precedent-wrecking and historically cherry-picked cases, the questionable legality of justices sitting on cases in violation of legal recusal requirements (28 U.S.C. §455) should be a valid consideration in determining the opinions’ precedential value. Put differently, overtly ideological, biased judges may have muscled through radical opinions, but that does not mean we should take the tainted pronouncements of robed partisans as the definitive word on controversial topics.
Alito’s misconduct, if unaddressed, would make the 2024 election a referendum on the court. Barring a sufficient response from Alito and Roberts, voters will be left to decide how to rehabilitate the court, rid it of the stench of scandal and insulate it from MAGA extremists. Democrats must be prepared to offer solutions.
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