Always look on the bright side of life: At least Alito and the truculent wife didn’t post a Nazi flag in front of their home after the J-6 insurrection. I bet Trump would have shared a photo of that on his failed pretend Twitter platform. Instead, he re-truthed a video about a “unified Reich” if he wins reelection. What a wild man he is!
I’ve been hearing a drumbeat lately of Democrats who think the party should run on the issue of the Supreme Court’s reactionary bias and grotesque corruption. Good idea.
In her column yesterday, Jennifer Rubin noted that “the radical Supreme Court that reversed Roe v. Wade is increasingly unpopular and scandal-ridden… In election after election going back to the early 1980s, Republicans used the Supreme Court to gin up their voters on a variety of issues, but especially on abortion. Democrats never really expected abortion access to disappear, so their presidential nominees did not rely as much on the Supreme Court to turn out their base. Now the tables are turned, at the very time the court has made a spectacle of itself. Angst over the Supreme Court’s serial ethical blunders remind Democrats and Democratic-leaning independents that the problem is not just abortion but the court itself. Justice Samuel Alito Jr.— who authored Dobbs and also committed arguably the worst ethical lapse on the court in memory— helps connect the dots for voters… The MAGA GOP, which created the most radical court in history, is wildly out of step with voters who want access to abortion, ethical rules and term limits for the court. Republicans need to be forced to defend grossly unpopular abortion bans, a disgraced court and unending judicial imperialism. No wonder they’d rather talk about Hunter Biden or troop up to New York to support criminal defendant Trump.”
Over the weekend Dan Pfeifer advocated Democrats running against the MAGA Court— and not just because of Alito. “Clarence Thomas failed to report a long list of financial gifts from people with business interests before the court. He refused to recuse himself from cases involving Trump’s efforts to overturn the election even though his wife was an active participant in the effort. There is almost nothing Democrats can do. Representative Adan Schiff called on Thomas and Alito to recuse themselves. They won’t. Impeachment is not an option. A Republican House would not take it up and there is no universe where a sufficient number of Republican Senators would vote to remove a corrupt Justice. With all of that said, we can channel our anger at Alito and the rest of the corrupt MAGA court into productive action. We can win the presidential election, in part by running against a corrupt Supreme Court.”
This seems hard to believe now, but back in 2016 many Republican voters did not like Trump. They didn’t believe he was a real conservative, they thought he was a conman and a cad. However, in the end, they held their noses and pulled the lever for him for one reason and one reason only— the Supreme Court.
At the time, there was an open Supreme Court seat that could tip the balance of the court. Antonin Scalia had died earlier that year and Mitch McConnell blocked President Obama from filling the seat. The winner of the race between Hillary Clinton and Donald Trump would get to appoint Scalia’s replacement. For Republicans who didn’t like Trump, the Supreme Court was reason enough to vote for him.
Democrats could use the court in the same way. The most recent New York Times/Siena poll shows that a swath of the electorate is voting for Donald Trump and a Democrat for Senate. These are voters who agree with the Democratic position on a wide range of issues including abortion, democracy, health care, and economic policy, but have soured on President Biden for one reason or another. To win reelection, Biden needs to win back these ticket splitters. Like in 2016, the Supreme Court could bring them home.
This is the court that overturned Roe v. Wade and is helping ensure Trump avoids accountability for his crimes. They are corrupt and out of touch with mainstream American values.
When it comes to this election, the stakes for the court could not be higher. As Democratic strategist Michael Podhorzer wrote in his newsletter:
Consider that by 2028, Clarence Thomas will be 80 and Samuel Alito 78, and Sonia Sotomayor will be 73 and has a chronic health condition. That means that by 2028, Trump could make nominations that add up to a 7-2 Federalist Society majority, with John Roberts the only one over 60 years old. On the other hand, Biden’s second term nominees could constitute a 5-4 “Democratic” majority, with Elena Kagan the only one over 60 years old (68). The stakes are similar in terms of the federal appeals and district courts, where a second Trump term would likely provide Federalist Society majorities on even more of the circuits, and many of his second term appointments would be unqualified ideologues like Matthew Kacsmaryk. A second Biden Administration (with a Senate majority), however, could claw back Federalist Society majorities in several circuits.
Running against a corrupt court is pushing on an open door. American faith in the Supreme Court is at an all-time low.
While I am a supporter of court expansion and term limits for Supreme Court Justices, at this moment, Democrats should highlight their support for financial disclosure rules, a code of ethics, and more accountability for the Supreme Court. A Navigator Research poll from last fall found large majorities in favor of such legislation.
Making voters— especially the less politically engaged— care about the Supreme Court is difficult. To succeed, we have to explain why it matters to their lives; how the rulings of a MAGA court will restrict their freedoms and be a boon to powerful interests. The fundamental question of this election is whether Democrats can hold together the anti-MAGA majority that won elections in 2017, 2018, 2019, 2020, 2022, and 2023. The best way to do that is to make this election about something bigger than a contest between two men. The Supreme Court is a perfect issue to go big.
And on Monday, Brian Beutler added “Here’s a simple objective for Senate Democrats: Reveal to the public whatever behind-the-scenes roles Samuel Alito and Clarence Thomas have played in the Supreme Court’s corrupt effort to protect Donald Trump from the law.” Yesterday, the NY Times’ Jesse Wegman went a bit further, noting that when Abe Fortas resigned from the Supreme Court in 1969, “he understood that the Supreme Court is an inherently fragile institution, and that its nine justices cannot afford the slightest whiff of bias or corruption. As The Times editorial board wrote then, ‘a judge not only has to be innocent of any wrongdoing but he also has to be above reproach.’ Placing the court’s and the country’s interests above his own, Justice Fortas stepped down. That sort of humility is nowhere in evidence on today’s court, which is finding new ways to embarrass itself, thanks largely to the brazen behavior of two of its most senior members, Justices Samuel Alito and Clarence Thomas, who are making a mockery of their obligation to at least appear neutral and independent. They fail to report large gifts, luxury vacations and payments to their family members by wealthy donors, at least one of whom had business before the court, and they express nakedly partisan opinions or fail to adequately distance themselves when their spouses express such views. They are saying, in effect, that they don’t care if any of this bothers you. To go by recent polls showing that this court’s public approval has approached record lows, it bothers many millions of Americans. And yet no one in Washington seems willing to act.”
As right-wing activists have understood about an institution with lifetime tenure, it’s all part of the long game. Justices Alito and Thomas may be in their mid-70s, but a new generation of even more extreme, more partisan activists are coming up through the judicial ranks right now. Many were appointed to the federal bench in Mr. Trump’s first term, and many more would surely be in a second term. These men and women will take the absence of meaningful congressional action as carte blanche to run roughshod over ethical norms.
This is about the future as much as the past. Young Americans who are voting for the first time this year were born after Bush v. Gore; some were not even in high school when Senator Mitch McConnell stole a Supreme Court seat from Barack Obama. For all they know, this is how the court has always been, and always will be.
That’s why now is the time to show future generations that the nation needs a court that can be trusted to be fair, a court whose justices have the capacity for shame. The Supreme Court is an institution that we depend on as much as it depends on us.
"We can win the presidential election, in part by running against a corrupt Supreme Court.” Not while our tax dollars support Israel's destruction of Gaza. The specter of Trump appointing Supreme court judges loomed large over his election. It wasn't enough to stop him. Pointing at the corruption of Justices isn't particularly moving unless you have a plan to fix the problem, a plan that the Supreme Court can't deem unconstitutional.