Once again, a sensational disclosure is rocking SCOTUS, after photos surfaced showing an insurrectionist symbol in front of Justice Alito’s home on January 17, 2021. This time, let’s redirect our attention from just the successive particular scandals of individual justices (upside down flags, Alaskan fishing trips, etc.). Instead, I am going to step back and explain how they interrelate – and connect to what really matters to this country and our future. To do that, I need to introduce three important concepts:
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Contextual amnesia is what I call it when an individual forgets or overlooks relevant information or facts in certain contexts while remembering them in others.
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Dismissed as improvidently granted (DIG) is a legal term used by appellate courts, particularly SCOTUS, when it dismisses a case because it has decided that it should not have taken the case in the first place.
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Fruit of the poisoned tree1 is a legal metaphor used to describe evidence that is obtained illegally, holding that if the source (the "tree") of the evidence or the method by which it was obtained is tainted, then any evidence derived from it (the "fruit") is also tainted and typically inadmissible in court.
With those concepts in mind, we must recognize that the upside-down flag incident is about much more than Alito’s conflicts of interest or poor character. The most important takeaway is that but for Alito and his similarly conflicted fellow justices, Donald Trump would almost certainly be a convicted felon for J6 by now.
Alito’s most obviously conflicted fellow justice is Clarence Thomas, whose wife Ginni actively assisted those working to overturn the election.2 In this instance, we have to make the rebuttable presumption3 that the decision to hear Trump’s appeal of the decisive, unanimous DC Circuit rejection of his immunity claims depended on Alito’s and Thomas’ votes.4 As such, the only legitimate move for the Court to make on the immunity case now would be dismissing it as improvidently granted.
The Media Has Contextual Amnesia
Unfortunately, much of the media suffers from contextual amnesia – unmindful of its own excellent exposes of the justices’ corruption when it reflexively accepts as legitimate the majority rulings that depend on those justices’ votes. And so, while the Congress absolutely should be considering impeachment proceedings against Alito, as well as moving forward on court reform, the immediate business the media and Congress should be putting to Chief Justice Roberts is, at a minimum, to demand a full accounting of Alito and Thomas’ roles in agreeing to hear the Trump and Fischer appeals, as well as their roles in the Court’s ongoing consideration of those cases.
Moreover, while it is well known that several of the justices had political backgrounds, there is another gross conflict of interest. All six Republican-appointed justices reached the Court with the backing of the Federalist Society, with a billionaire-funded, religious-right-backed mandate to “make America great again” – that is, to take us back to the America of the 1920’s, when capitalism was unrestrained and racial and gender hierarchies were uncontested. Indeed, Trump’s pick of the last three justices fulfilled his campaign promise to select his SCOTUS nominations from the Federalist Society list.
With Thomas and Alito aged 74 and 76 respectively, the six Federalist Society justices know that a second Trump term would enable them to pass on their seats to equally MAGA justices, sealing their legacy on SCOTUS for a generation. If even one of the Democratic appointees had a health or other issue leading to an empty seat, Trump could make nominations that add up to a 7-2 Federalist Society majority, with John Roberts the only one over 60 years old. To that, add the additional hundreds of other Trump appointments to federal district and appeals courts, which would enshrine the new “the law is what we say it is” jurisprudence. And, of course, we’ll see more Kacsmaryks and Cannons on the Federal Bench.
Dismiss the MAGA Majority as Improvidently Confirmed
More broadly, at least five of the justices themselves should be dismissed as improvidently confirmed: Thomas, Alito, Gorsuch, Kavanaugh and Barrett are the only five of 116 SCOTUS justices to be approved by senators representing a minority of the American people. Of all the justices to serve in the last century and a half, Gorsuch, Kavanaugh and Barrett are the only ones to have been named by a president who did not win the popular vote. And, of course, Gorsuch and Barrett both owe their seat to Mitch McConnell. That is the case with Gorsuch because McConnell illegitimately refused to fill a vacancy when Obama was president. It is true of Barrett because McConnell illegitimately rammed through her nomination after tens of millions of Americans had cast their ballots, and as every survey and forecast indicated that Biden would be the next president. Moreover, although it was obvious at the time, it has since been more substantiated that both Thomas and Kavanaugh perjured themselves at their confirmation hearings.5
Despite all the evidence, the media and congressional leaders credit Roberts with being the “adult in the room” whose primary motivation is the court's credibility and his own legacy. Yet it has always been clear that the only action he will take to preserve the credibility of the court is to scold those who question the legitimacy of its rulings. This should not be a surprise. In 2009, he wrote the dissent in a case in which the Court ruled in favor of a plaintiff whose $50 million judgment had been overruled by an elected state Supreme Court (by a narrow 3-2 margin), with the deciding vote cast by a state supreme court justice who was elected with a $3 million contribution from the defendant. Roberts argued that questioning the fidelity of justices to their oath of impartiality would “lead to an increase in allegations that judges are biased,” or “erode public confidence in judicial impartiality.”
As Roberts might put it: The best way to end charges that the Court is corrupt is to stop corrupt justices from serving on the Court.
America’s Dysfunction is the Fruit of the Poisoned Tree
It’s long past time we acknowledge and reckon with the extent to which our present national dysfunction is the fruit of the poisoned tree – the illegitimate SCOTUS majority. When he was confirmed, Roberts famously claimed that the proper role of the court was to be “an umpire, calling balls and strikes.” But unlike the conservative and liberal Chief Justices before him who toggled between narrow and expansive strike zones, the Roberts courts declares winners and losers –ignoring the rulebook altogether, providing free passes to the special interests they represent, and striking out the rights and freedoms that heroic Americans over generations fought and died to accomplish democratically.
The execution of this agenda has been nothing short of a slow-motion coup against our freedoms. The Supreme Court has not only transformed itself into a democratically unaccountable lawmaking body; it has used this illegitimate power to create a one-way ratchet that makes the rest of our system less democratically accountable.
Consider this thought experiment. Imagine that in November 2008, immediately after Barack Obama was elected, sweeping in Democratic majorities of 60 seats in the Senate and 256 in the House, you sank into a coma. Revived today, you would be told that Donald Trump was ahead or tied in polling (however unreliable) despite leading an insurrection; that in the next election, after after two thirds of Republicans in Congress voted to reject the results of the 2020 election, the GOP flipped control of the House, and elevated successive election-deniers to the Speakership; that the Voting Rights Act was all but repealed; that Roe v. Wade had been overturned; that the wealthy and corporations are free to make unlimited expenditures in elections, more than doubling the cost of federal ones; that the South was again largely in the grip of one-party authoritarian regimes; and that the right to own a AR-15 was the one of the few remaining freedoms Americans could confidently claim. And then you were told that NONE of those changes were the result of Congressional legislation. What would you conclude? It’s all fruit of the poisoned tree.
Supreme Gaslighting
Throughout their confirmation hearings the six Federalist Society justices pledged allegiance to stare decicis, the doctrine that courts will adhere to precedent in making their decisions.6 But they also claimed allegiance to originalism,7 the Trojan Horse whose utility is its privileging “original intent” over precedents. It was a tool precisely designed to be the pretextual justification for breaking precedents.8 But, of course, their commitment was not to stare decisis, nor originalism, but to ipse dixit - “he himself said it” – it’s the law because we say it’s the law.
Like Roberts – who believes that the credibility of the legal system is better served by presuming whatever judges do, they do in good faith, than by holding accountable those who obviously don’t – we cling to the belief, against all evidence, that the credibility of the Supreme Court and the “rule of law” are better served by defending the institution rather than holding it accountable to democratic scrutiny.
1 Or “poisonous tree,” but I prefer “poisoned” because the tree didn’t get that way on its own.
2 Her activities included emailing state lawmakers in Arizona and Wisconsin to urge them to ignore the results of the 2020 presidential election and vote instead for an alternate slate of electors, and texting Mark Meadows to urge him to falsely claim election fraud.
3 A legal concept where a fact is assumed to be true until someone comes forward to contest it and prove otherwise. It places the burden of proof on the party challenging the presumption to provide evidence that the presumed fact is not true. If sufficient evidence is presented to counter the presumption, it can be overturned.
4 Assuming that Kagan, Sotomayor, and Jackson did not vote to take the appeal, without Thomas and Alito, granting cert would have required united support from Roberts, Kavanaugh, Gorsuch, and Coney Barrett.
5 A specially appointed federal panel of judges concluded that 83 ethics complaints brought against Kavanaugh were “serious”—but that they were obligated to dismiss the complaints because no existing authority allows lower court judges to investigate or discipline Supreme Court justices.
6 Stare decisis means “to stand by things decided” in Latin.
7 For excellent take downs of originalism, see Slate’s How Originalism Ate the Law, the Amicus with Dahlia Lithwick podcast series that accompanies it, and Dean of Berkeley’s law school Erwin Chemerinsky’s Worse than Nothing: The Dangerous Fallacy of Originalism.
8 In 2020, Harvard law professor Adrian Vermeule said the quiet part out loud:
But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation… originalism has prevailed, mainly because it has met the political and rhetorical needs of legal conservatives …. But circumstances have now changed. The hostile environment that made originalism a useful rhetorical and political expedient is now gone.
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