Chief Justice John Roberts must take responsibility for his court. If he does not, what follows will be his legacy — and we’ll have to deal with the fallout.
Congress cannot remove a federal judge, except by impeachment, but Congress can determine jurisdiction that courts have. Congress can keep Alito getting his salary but Congress has the power to pass a law requiring Supreme Court justices rotate off the Supreme Court and onto a district Court in def8ned cycles, for example, after 6 years on the Supreme Court she or he gets 6 years as a district judge, then 6 years as a circuit judge.
Chris, thank you so much for your voice on this. I am a former Dist. Ct. DC law clerk for a Reagan appointee (who hates being referenced that way). I am enraged and appalled by Alito. I’m certain my judge is horrified by his behavior. I mean this as an earnest question: should we stop saying publicly that we don’t expect him to recuse/resign? I mean, realistically I don’t. But I wonder if all of the voices being publicly and vocally resigned to that fact (no pun intended) gives him more cover not to do the right thing? I fear that we are conceding to moving the goal posts.
I get that concern — and think it’s illustrated in the bottom section of this piece. But, considering others are saying we shouldn’t even be saying we expect anything of Roberts, I think we can both say Alito should recuse and that he likely won’t. That’s not cover, I don’t think.
Given that I just went through his Moore non-recusal statement over the weekend in working on my stock story, I am admittedly likely more dismissive than I would otherwise be. But, I’m not sure Alito wants to do the right thing here, so I’m just not sure it matters.
Regardless of all that, though, the goal post is still recusal — even if he doesn’t want to do so. As I write, the first step for his colleagues is behind-the-scenes pressure for him to recuse.
First, again thanks for your work and for your reply - to be clear, I am convinced Alito has no intention to do the right thing. I'm also so dismayed at Roberts’ failure to act - the same goes for anyone who says we shouldn’t expect him to do so. Frankly, my loss of respect and belief in the integrity of the institution of the Court is so devastating. That probably sounds so naive, but it really is heartbreaking. It is time for everyone on the right side of history- including Alito’s colleagues- to do/say something.
I wonder if bookies in Las Vegas are taking bets on who will get blamed for the Appeal to Heaven flag. Who gets thrown under the bus this time?
In more concrete terms, how likely is it John Roberts would call a judicial conference or file a recusal motion? I don’t know enough to know how common that is but he must know how much worse the new flag looks. Is he waiting to see if Trump wins, so he doesn’t have to reign in the behavior at all or is it likely he’s - finally - considering serious action? I realize luxury trips, RVs and spousal political action didn’t move him but even he must have a line somewhere. I don’t agree but I can see how trips and the rest could be seen as gifts from friends but political statements are a horse of another color, to use a horse racing and Wizard of Oz metaphor.
What I find ironic but not surprising is that Trump makes a big deal about the work Judge Merchan’s adult daughter does for some democrats at her marketing firm, but actual action by Ginnie Thomas around false electors and January 6 bring nothing but crickets.
It's incredibly unlikely, Roberts cares about maintaining the thin veneer of legitimacy the court still has but only insofar as it accomplishes his main goal: To place as many obstacles between the people and the ballot box as possible. The better question might be, When will the American people come to the same understanding that so many other people have, that blocking "legitimate" means to express one's political will forces and in no small part justifies supposedly-less "legitimate" means?
Spot on, Chris...but Roberts has so often shown himself as refractory to ethics complaints about his fellow Justices, that even this latest Alito outrage will likely pass unnoticed, at least
publicly. There appears NO breaches of judicial conduct or quaint canons so severe to cause Roberts to *forcefully* act, as the waiting-it-out posture has worked well in the case of the uber-corrupt Thomas, and no doubt will serve admirably in the Alito serial flag-waving episodes as well.
Dick Durbin gave another shrug of his shoulders on holding any hearing by the Senate Judiciary Committee, which no doubt is echoed in the WH also. These people just refuse to fight the good fight, which only encourages more bad behavior by bad actors, knowing they can fecking get away with it...Scheisse!
RBG had to deal with these 2 corrupt and unethical justices for years. How did she DO it? Did she have any idea the extent of their corruption? My guess is she highly suspected there was something wrong, but could not, by herself, launch an investigation, or even suggest her suspicions if she were to maintain HER credibility. The corruption in ALL the courts is beyond comprehension. President Biden has begun the process of replacing corrupt judges by placing honest and ethical judges on all the courts, but if he is not re-elected the fascist takeover of our judicial system will continue .
Alito is a symptom of a much larger problem, which is that SCOTUS needs to be rethought. We have had horrifying glimpses into what this country could very possibly devolve into if we don't make some significant changes at the topmost levels of our government. Lots of what has worked for the last two hundred forty-eight years has come to an end.
Sheldon Whitehouse (D-RI), who sits on the Senate Judiciary committee was on Lawrence O'Donnell tonight and he said that there's a law passed by Congress that granted oversight over SCOTUS and that they have the authority to ask for recusals. Seems to me there would be a separation of powers question if they did that, but Congress does have some authority over SCOTUS, so who knows?
I believe and I have always believed that judges decide first what they think the outcome of a case should be. They work backward from there, crafting an opinion that justifies whatever they already think is true.
My husband, a lawyer, is appalled when I assert this. He believes legal reasoning is just that, a system of applying principles; the principles lead to the decision. Or he used to. With the Supreme Court as it is he no longer thinks I have it all wrong.
That being said, just because judges have a pretty good idea of what the outcome is doesn't mean that they're *necessarily* doing it in bad faith:
1. In cases of first impression a judge may have to go with an "educated gut instinct" and build argument around it;
2. Conversely in cases involving black-letter principles a judge may instinctively be able to tell what the right answer is and need only find the exact authorities afterwards.
(I know we're talking about slightly different things - and I agree with you that some judges/justices do indeed just take a viewpoint that they like/agree with and build an argument, warping a good-faith understanding of the law if needs be, to suit it).
Does anyone think that Haley's announcement was made today was to draw attention away from Alito? They're all trying to protect baby boy since he gave them Dobbs.
When we don’t see what is right in front of our eyes, when we do not have a countability, when we choose to thwart the constitution , how do we uphold the law?
Isn’t every day dt steps further away from accounting, is it effecting everything from presidency down?
We cannot accept there will be no rule of law. Can we accept SCOTUS that does not honor this same rule of law???
Chris, I really hope you’re right and some change happens. But lifetime appointments means never having to say you’re sorry.
Congress cannot remove a federal judge, except by impeachment, but Congress can determine jurisdiction that courts have. Congress can keep Alito getting his salary but Congress has the power to pass a law requiring Supreme Court justices rotate off the Supreme Court and onto a district Court in def8ned cycles, for example, after 6 years on the Supreme Court she or he gets 6 years as a district judge, then 6 years as a circuit judge.
Lifetime appointments and 2 senators per slave state...
Thank you for saying this. I agree.
The Chief Justice — and the responsible among Associate Justices — have a duty to respond. Somehow they must address this gross impropriety.
What you suggest sounds eminently reasonable. One can only hope for timely intestinal fortitude and moral certainty.
Agreed. Roberts is impotent.
Chris, thank you so much for your voice on this. I am a former Dist. Ct. DC law clerk for a Reagan appointee (who hates being referenced that way). I am enraged and appalled by Alito. I’m certain my judge is horrified by his behavior. I mean this as an earnest question: should we stop saying publicly that we don’t expect him to recuse/resign? I mean, realistically I don’t. But I wonder if all of the voices being publicly and vocally resigned to that fact (no pun intended) gives him more cover not to do the right thing? I fear that we are conceding to moving the goal posts.
I get that concern — and think it’s illustrated in the bottom section of this piece. But, considering others are saying we shouldn’t even be saying we expect anything of Roberts, I think we can both say Alito should recuse and that he likely won’t. That’s not cover, I don’t think.
Given that I just went through his Moore non-recusal statement over the weekend in working on my stock story, I am admittedly likely more dismissive than I would otherwise be. But, I’m not sure Alito wants to do the right thing here, so I’m just not sure it matters.
Regardless of all that, though, the goal post is still recusal — even if he doesn’t want to do so. As I write, the first step for his colleagues is behind-the-scenes pressure for him to recuse.
First, again thanks for your work and for your reply - to be clear, I am convinced Alito has no intention to do the right thing. I'm also so dismayed at Roberts’ failure to act - the same goes for anyone who says we shouldn’t expect him to do so. Frankly, my loss of respect and belief in the integrity of the institution of the Court is so devastating. That probably sounds so naive, but it really is heartbreaking. It is time for everyone on the right side of history- including Alito’s colleagues- to do/say something.
I wonder if bookies in Las Vegas are taking bets on who will get blamed for the Appeal to Heaven flag. Who gets thrown under the bus this time?
In more concrete terms, how likely is it John Roberts would call a judicial conference or file a recusal motion? I don’t know enough to know how common that is but he must know how much worse the new flag looks. Is he waiting to see if Trump wins, so he doesn’t have to reign in the behavior at all or is it likely he’s - finally - considering serious action? I realize luxury trips, RVs and spousal political action didn’t move him but even he must have a line somewhere. I don’t agree but I can see how trips and the rest could be seen as gifts from friends but political statements are a horse of another color, to use a horse racing and Wizard of Oz metaphor.
What I find ironic but not surprising is that Trump makes a big deal about the work Judge Merchan’s adult daughter does for some democrats at her marketing firm, but actual action by Ginnie Thomas around false electors and January 6 bring nothing but crickets.
It's incredibly unlikely, Roberts cares about maintaining the thin veneer of legitimacy the court still has but only insofar as it accomplishes his main goal: To place as many obstacles between the people and the ballot box as possible. The better question might be, When will the American people come to the same understanding that so many other people have, that blocking "legitimate" means to express one's political will forces and in no small part justifies supposedly-less "legitimate" means?
Spot on, Chris...but Roberts has so often shown himself as refractory to ethics complaints about his fellow Justices, that even this latest Alito outrage will likely pass unnoticed, at least
publicly. There appears NO breaches of judicial conduct or quaint canons so severe to cause Roberts to *forcefully* act, as the waiting-it-out posture has worked well in the case of the uber-corrupt Thomas, and no doubt will serve admirably in the Alito serial flag-waving episodes as well.
Dick Durbin gave another shrug of his shoulders on holding any hearing by the Senate Judiciary Committee, which no doubt is echoed in the WH also. These people just refuse to fight the good fight, which only encourages more bad behavior by bad actors, knowing they can fecking get away with it...Scheisse!
I agree with you, but the last thing John Roberts would do is pressure Alito in any way. He will try to sweep all of this under the rug.
RBG had to deal with these 2 corrupt and unethical justices for years. How did she DO it? Did she have any idea the extent of their corruption? My guess is she highly suspected there was something wrong, but could not, by herself, launch an investigation, or even suggest her suspicions if she were to maintain HER credibility. The corruption in ALL the courts is beyond comprehension. President Biden has begun the process of replacing corrupt judges by placing honest and ethical judges on all the courts, but if he is not re-elected the fascist takeover of our judicial system will continue .
Thank you Chris. I read things
are afoot in the senate
concerning SCOTUS. We
must ensure we keep or
expand the dem senate,
take back the house and
definitely re-elect Biden.
Thomas and Alito have done
a lot of damage to the court
and neither have any
business, anywhere near
anything, that deals with
Donald Trump.
Alito is a symptom of a much larger problem, which is that SCOTUS needs to be rethought. We have had horrifying glimpses into what this country could very possibly devolve into if we don't make some significant changes at the topmost levels of our government. Lots of what has worked for the last two hundred forty-eight years has come to an end.
Sheldon Whitehouse (D-RI), who sits on the Senate Judiciary committee was on Lawrence O'Donnell tonight and he said that there's a law passed by Congress that granted oversight over SCOTUS and that they have the authority to ask for recusals. Seems to me there would be a separation of powers question if they did that, but Congress does have some authority over SCOTUS, so who knows?
Wondering how much truth there is in this?
I believe to get SCOTUS an ethics audit? We would 1 st have to have the 3 levels of justice enact a few platefoema( laws), to keep this enforceable.
Jerry Mandering is a thing. Why can’t we as voter place fillibuster on the voting ballot and place a reviews board or ethics council over SCOTUS.
If we don’t we won’t have a constitution last
I believe and I have always believed that judges decide first what they think the outcome of a case should be. They work backward from there, crafting an opinion that justifies whatever they already think is true.
My husband, a lawyer, is appalled when I assert this. He believes legal reasoning is just that, a system of applying principles; the principles lead to the decision. Or he used to. With the Supreme Court as it is he no longer thinks I have it all wrong.
To some extent - it depends.
That being said, just because judges have a pretty good idea of what the outcome is doesn't mean that they're *necessarily* doing it in bad faith:
1. In cases of first impression a judge may have to go with an "educated gut instinct" and build argument around it;
2. Conversely in cases involving black-letter principles a judge may instinctively be able to tell what the right answer is and need only find the exact authorities afterwards.
(I know we're talking about slightly different things - and I agree with you that some judges/justices do indeed just take a viewpoint that they like/agree with and build an argument, warping a good-faith understanding of the law if needs be, to suit it).
I figured his connection to Paul Singer would have sunk him, but nope. Totally ignored.
Thank you, Chris. So grateful for how clearly you see this ghastly situation, and how powerfully you speak to it.
Does anyone think that Haley's announcement was made today was to draw attention away from Alito? They're all trying to protect baby boy since he gave them Dobbs.
When we don’t see what is right in front of our eyes, when we do not have a countability, when we choose to thwart the constitution , how do we uphold the law?
Isn’t every day dt steps further away from accounting, is it effecting everything from presidency down?
We cannot accept there will be no rule of law. Can we accept SCOTUS that does not honor this same rule of law???
Roberts is a problem too if he won’t take care of his problems. Looking at you, Clarence.