John Bolton was on CNN carrying water for Alito. Even those few Republicans left who are not Trumpists will rally around Alito. They’ve spent decades and multiple millions of dollars to get this Court and they are not going to let anyone with silly expectations of ethics and judicial temperament to mess with their shiny toy. If Trump wins, and Alito and Thomas continue to shit the bed, maybe they’ll be bribed off so the likes of Judges Ho and Willett can replace them.

The only possible remedy, the only one, is a Dem control of Congress and the White House solid enough to expand the Court and dilute the insurrectionist wing.

Expand full comment
May 23·edited May 23

I don't believe that court-packing is a good idea - everyone collectively has a duty to well...not make things worse.

Expand full comment

I never believed court-packing was wise (though it certainly is constitutional, legal, and historically normal), but if the only alternative to court-packing is allowing lifetime appointments to use a generation's worth of cases before them to fundamentally change the character of America and undo our system... I think I can get behind it.

Expand full comment

"[I]f the only alternative to court-packing is allowing lifetime appointments to use a generation's worth of cases before them to fundamentally change the character of America and undo our system... I think I can get behind it"

See my reply to Spence in Austin but history teaches that this isn't the first time that's happened: viz. Lochner then the Warren Court. The fact that some (or even many) decisions of the Supreme Court are substantively objectionable isn't surprising and isn't a reason to change how the Supreme Court works.

Without getting into that jurisprudential debate about whether you can separate law from politics, I agree that the Court is arguably more politicised than it needs to be. But that's not going to be fixed by court-packing. Politicisation happens in no small part because third parties - beyond the 9 justices themselves - *perceive* the Court as a political entity. Court-packing will only *reinforce* that twisted vision of things. It will also reinforce denormalisation of moderate/swing justices like Kennedy, Souter et al., who are critical to depoliticising the Court (time will tell if Barrett and Jackson are going to head in that direction).

Expand full comment

Why would expanding the Court make things worse?

Expand full comment

Well you see the rule of law belongs collectively to the polity/the citizens not to the advancement of a political cause.

Even if you agree with the underlying reasons, packing the court today to cure a court which is perceived as incompetent or biased that opens the door to the same argument being used in the future by other people - remember that many politicians/political groups after all tend to foster the belief, especially nowadays, that the "other side" are somehow inherently lesser people: Democrats don't think of Trump and co. as honest, competent or decent people, and Trump and co. doesn't think of Democrats as honest, competent or decent.

The other thing is that generally administrative reform doesn't go a long way to fixing defective public institutions and services anyway. Neither the Warren Court nor the Lochner Era (both examples of a dysfunctional court, depending on your point of view) ended by way of major court reform - and especially not court-packing.

Lastly it's one thing to say "I don't agree with the Court's conservative political vision, and its decisions in cases like Dobbs and Bruen" and it's another to think of the court as radically and organically biased or incompetent - at best a cogent argument could be made that one or two *justices* are like that - but that's not grounds for court reform: instead those individual justices ought to be investigated on an individual basis instead.

(For those same reasons I don't have an objection to extending the JC&D Act to Justices either, and if you want my opinion Congress should consider merging the FedCir and CADC judicial councils, add SCOTUS in and make a sort of "D.C. Joint Judicial Council" - which would also curb localism/favouritism concerns - see the Judge Newman issues over at the Federal Circuit)

Expand full comment

“it’s one thing to say "I don't agree with the Court's conservative political vision, and its decisions in cases like Dobbs and Bruen" and it's another to think of the court as radically and organically biased or incompetent - at best a cogent argument could be made that one or two *justices* are like that - but that's not grounds for court reform: instead those individual justices ought to be investigated on an individual basis instead.”

I think you’re minimizing just how much the integrity of SCOTUS as an institution has been corrupted by the decades long politicization campaign by the Federalist Society, the machinations of the Senate GOP, and the political extremism of the conservative majority.

Beyond the clear ethical breaches and extremism of Thomas and Alito, you have Gorsuch’s stolen seat, Kavanaugh’s raging at Democrats in response to a credible and insufficiently investigated complaint of gross misbehavior as a young adult, and the outrageous decision by the conservatives to give Trump’s claims of absolute immunity a serious - and intentionally prolonged - consideration.

In response to the assertion that Republicans might some day also expand the Court - let them. The more seats that are added, the less reason to go to war over a single vacancy.

I will agree that court packing is not the ideal solution. I would rather see a Constitutional amendment that enlarged the Court and imposed staggered term limits so as to open up one vacancy every presidential term. But that has zero chance of passing so long as Republicans have mastery of the Court. The only way of remedying the current situation that is even possible, though admittedly unlikely, is packing the Court if the Dems ever manage to control both Congress and the White House.

Expand full comment

"In response to the assertion that Republicans might some day also expand the Court - let them. The more seats that are added, the less reason to go to war over a single vacancy."

Well that sounds dangerously like some kind of escalation race - even if you say that "the Trumpians (I don't want to tar all Republicans - even the sensible ones - with the same brush) started it", the rule of law or the constitution doesn't belong to whoever happens to be the victim of an abuse of the legal system for the time being.

Either way I don't think it will really do away with the desire or need to "go to war" over a nomination.

Expand full comment

You are proceeding from the idea that we have something approximating normal, ethical politics and jurisprudence right now, and that if we open the door to corrective action, it will destroy that normality.

I would argue that we have long passed that point. The far right is interested in seizing power my any means possible, and they representation in the Supreme Court.

Assume that things continue down this path: at what point do you start to think about using power to stop them?

I think it’s well past time.

Expand full comment

You don’t see a difference between fighting over 1 of 9 votes vs 1 of 13 or 15 or 21?

It’s not ideal but I fail to see how it would be worse than our present day court of destroyed legitimacy.

Expand full comment

You're understating it: "Trump and co." don't think of the rest of us as *human*

Expand full comment

Wishful thinking: Democrats will not gain Congress and the WH will never get a "pack the Court" bill off the ground. This country is truly and deeply divided.

Expand full comment

I don’t think it’s likely. But it’s the only way of addressing the Court that is even feasible.

Expand full comment

Chris, I really hope you’re right and some change happens. But lifetime appointments means never having to say you’re sorry.

Expand full comment

Lifetime appointments and 2 senators per slave state...

Expand full comment

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.

Expand full comment

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.

Expand full comment

Agreed. Roberts is impotent.

Expand full comment

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.

Expand full comment

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.

Expand full comment
May 23Liked by Chris Geidner

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.

Expand full comment

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.

Expand full comment

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?

Expand full comment

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!

Expand full comment

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.

Expand full comment

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 .

Expand full comment

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.

Expand full comment

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.

Expand full comment

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?

Expand full comment

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

Expand full comment

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.

Expand full comment

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).

Expand full comment

I figured his connection to Paul Singer would have sunk him, but nope. Totally ignored.

Expand full comment

Thank you, Chris. So grateful for how clearly you see this ghastly situation, and how powerfully you speak to it.

Expand full comment

Legacies only matter to those with a moral compass.

Expand full comment

And why should the corrupt 'justices' stop? No one will punish them. One almost can't blame them.

Expand full comment

The LIbertarian Fascists of the RNC have flaunted the fact that they are above the law. Constitutional law professors all across the nation are flabbergasted by the outright bastardization of the law by Alito, Thomas and hapless Roberts. These people are traitors, funded by Libertarian Fascist Billionaire Traitors. They even party together, out in the open, and then find loopholes for charging taxpayers. “Unmoored legal theories, unprecedented procedural maneuvers, unchecked politicalization of the Court . . .resulting in a judicial power grab” by federal judges with lifetime appointments. We are in the throes of a fascist takeover, and the federal government is not responding to the clear and present dangers. https://www.americanprogress.org/article/the-5th-circuit-court-of-appeals-is-spearheading-a-judicial-power-grab/

Voting. Ha. The Fix is already in, the STEAL is on. Flynn is developing militias across the country; RNC office holders have already declared the vote invalid. Yet we allow the most vocal traitor of all, Trump, to rally insurrection. The Fascist Billionaires installing these puppets have already developed an alternative financial system based upon cyber and crypto currencies. https://ips-dc.org/billionaire-enabler-states/

A close vote isn’t going to address an outright attack on democracy by FASCISTS.

Expand full comment