Since last month’s post about Justice Samuel Alito’s apparent addiction to treason-associated flags, there’s been a spate of developments related to both Alito’s personal corruption and the corruption of the right-wing Supreme Court majority more generally. It’s been enough that I want to start by reiterating a point I’ve made before: there are certain political dumpster fires where there is very little cost to Democrats in working to define a public narrative and agenda for action, in part because there is a near-certainty that fresh information will continue to come to light that will only reinforce the case they are trying to make.
The current Supreme Court is clearly vying to be the supreme example of my pet theory. In just the last month, we’ve had additional reporting that casts doubt on the Alitos’ public statements about the circumstances on why the pair of treason flags were flown at family residences (even as the judge has continued to place the blame for the insurrectionary symbols squarely on his wife). Beyond this, an investigative reporter infiltrated a Supreme Court shindig and recorded conversations with both Alitos that aren’t simply unflattering, but in the case of the justice, cast still more doubt on his ability to judge crucial cases without imposing his significant and severe personal prejudice. And apart from the Alitos, inquiries by Senate Democrats have resulted in revelations of even more undisclosed financial gifts to Justice Clarence Thomas, in this instance free flights on millionaire Harlan Crow’s private jet.
As I’ve written before, the corruption of the Supreme Court’s right-wing majority is in the first place inherently bad on various straightforward levels — anti-democratic in ways that align with the authoritarian Republican Party, anti-freedom in ways that reflect an Christian extremist bias, anti-civil rights in ways that reflects a fundamentally white supremacist vision of America, pro-plutocrat in ways that reflect adulation of the millionaire class. Together, these are more than reason enough to place Court reform at the center of the national agenda. As more and more people are recognizing and describing, the Supreme Court has effectively become an unelected GOP legislature, ruling on a host of laws in ways that consistently advance a far-right agenda that doesn’t have the votes to pass at the national level.
But though it is very good news that the Court’s malfeasance is coming to greater public attention, there is one enormous downside that I believe the Democratic leadership is struggling to navigate. The more the Court’s corruption and over-extended power comes to light, the more the public will reasonably ask what the Democrats are doing to correct this imbalance. And as we’ve seen in other areas of conflict with the Republican Party, many senior Democrats are conflict-averse when it comes to fully engaging with the GOP. With the Court, of course, there are understandable (if not fully defensible) reasons for hesitation. At the present time, it does appear impossible to believe that corrupt justices like Alito and Thomas might be impeached and removed from the Court — not with the GOP perfecting displays of “totalitarian unanimity” when it comes to defying the rule of law. But this perceived impossibility seems to be leading the Democrats to not even begin a process that might change public opinion and the country’s political dynamics in ways that might yet yield results, at least in the long term.
Not only is this counter-productive for anyone urging Court reform, it also threatens to implicate the Democrats in the very corruption the claim to oppose. If they do not seem to be trying to undo the corruption, then some might reasonably conclude that they’re actually OK with it. To me, this is a huge reason why action is required, even if that action can’t reasonably be expected to yield immediate results. Indeed, too many Democrats seem to assume that a Court and a GOP that defy common-sense reforms will make them look weak — but it seems equally possible that such defiance might help erode public support for the Court majority and its defenders.
But though the Democrats risk being tainted by the Supreme Court’s corruption if they fail to move to remedy it, it’s equally clear that Chief Justice John Roberts implicates himself in both Alito’s and Thomas’s corruption every more deeply as the days pass and he refuses to impose meaningful measures that might censure or curb their outlandish behavior. At some point, silence must be read as active complicity in the two men’s insurrectionary and anti-democratic projects. A more aggressive Democratic Party would be hounding Roberts’ failure to lead the Court in an ethical manner, which could in turn increase public pressure for meaningful change.
An underlying issue here is that institutionally-minded Democrats seem to genuinely worry about the Court’s legitimacy and the potential damage to the rule of law should the broader public no longer have faith in the Court’s rulings. This is an understandable concern, as the Court should ideally function as a trusted arbiter of disputes between the various interests and factions of American society. But only a fool would say that this is how the Court currently operates. Instead, it’s become the de facto legislator for imposing minority positions that lack support to ever pass Congress and be signed into law.
This means that when Democrats speak of restoring the legitimacy of the Court, but fail to speak of its legacy of corruption and political extremism that has subverted American democracy and freedom, they inadvertently position themselves as defenders of the Court’s long record of bad decisions. And so this leads Democrats to essentially tell the American majority that they need to effectively eat shit for the indefinite future — to accept as legitimate Court decisions that have been issued by a corrupt Court, in order to preserve public respect for the Court when it someday, somehow begins to issue more reasonable decisions.
But apart from other logical flaws I’ve pointed out, this runs into one gargantuan one: the fact that the Supreme Court is currently acting to subvert the democratic political system that provides the most viable path to checking the Court’s power and ensuring its rulings reflect reasonable interpretations of the law, not right-wing fantasies bent on social control and rule by the nation’s white Christian minority. The Court has attacked the democratic system in ways small and large, from gutting the Voting Rights Act, to signing off on unfettered gerrymandering that lets representatives choose their voters, to eliminating limits on the ability of millionaires and billionaires to buy political favors.
Michael Podhorzer makes this very case over at Weekend Reading, where his latest piece is a tour de force accounting of the various ways the Supreme Court has transformed into an unaccountable Republican power center that accomplishes what minority-status Republicans cannot. Unflinching and exhaustive, his indictment of the Supreme Court’s turn against American democracy in favor of partisan ends is breathtaking. Yet none of the Court’s prior attacks on the democratic system may be as consequential as the Court’s complicity in helping Donald Trump evade accountability for his attempts to overturn the results of the 2020 presidential election. As Podhorzer writes, “By shielding Donald Trump from standing trial before a jury in two of his felony cases, Trump’s three appointments to the Supreme Court, along with the even more MAGA Justices Alito and Thomas and Judge Aileen Cannon, have already irreparably interfered in the 2024 election.” If the Court has over the last 20 years built a ticking time bomb to demolish American democracy and the rights that make our free society possible, its defense of Donald Trump constitutes a lighting of a fuse that may well cause that bomb to explode and blow our democracy to kingdom come.
Podhorzer characterizes the situation wrought by the Court majority around Trump’s immunity case as a “crisis,” as “We will face an irreconcilable showdown between the normal operation of the criminal justice system (which should find Trump in pretrial and trial proceedings for his January 6th crimes over the next five months) and the normal functioning of presidential elections (which should find him campaigning full-time during those months).” But Podhorzer’s piece implicitly argues for an even broader crisis rooted in the Court’s abandonment of democracy and neutrality in favor of open partisan warfare, in which the Court’s effort to protect Trump represent the extreme, logical extension of the MAGA majority’s dark turn.
However, the intersection between the Court’s corruption and Trump’s re-election campaign represents not just a new nadir in the story of the modern Court, but a potential pivot point to restore American democracy by reforming the Court and combatting GOP authoritarianism. Podhorzer’s piece is the most recent exemplar of increasing journalistic attention on how the need to to rein in the right-wing Court majority is fusing with the 2024 election campaign. The groundwork for this convergence was set when the Court handed down the Dobbs decision in mid-2022, which remains a shocking repudiation of a basic right to bodily autonomy that most Americans took for granted, and focused public attention on the Court’s undeniable reactionary bent. But the Court’s recent interventions in the 2024 election shows how very broad the MAGA majority’s impact has become. The Court isn’t just handing down rulings that are erasing decades of social and economic progress — it’s also handing down rulings that kneecap our democratic government and thus render it difficult or impossible to act legislatively to reverse the Court’s rule by judicial fiat.
In putting its thumb on the scale in favor of Trump’s re-election campaign, the Court has left the Democrats no choice but to place questions of the Court’s corruption at the center of the 2024 campaign. As a matter of the Democratic Party’s own survival, it can’t allow to continue unchallenged a Republican power center that floats above even a modicum of democratic accountability. And as a matter of democracy’s survival, the nation can’t tolerate a Court that sides with one party over the other — particularly when its favored party increasingly holds majority rule to be the enemy of cherished reactionary goals. The logical argument for Democrats to make is that tangible reforms of the Court are urgently needed, including term limits and an expansion of the Court to re-balance away from the reactionary majority. Ignoring the Court’s transformation into a bastion of right-wing power would be tantamount to issuing a white flag of surrender.
In recent weeks, we have in fact seen some signs that this political reality is proving undeniable to the Biden campaign. In remarks at a fundraiser, President Biden noted that the next president would likely be able to appoint at least two justices — depending on who holds the presidency, this would result in either a continued MAGA lock on the Supreme Court, or a restored centrist-liberal majority. In this respect, Biden appears to be seeking a middle path, in which he stresses the importance of the Supreme Court to the 2024 election without urging possibly controversial and hard-to-implement structural reforms such as term limits or court expansion. Such signs of prioritizing the Court in his re-election bid are deeply encouraging, both because the Supreme Court is proving an impediment to pro-democracy and progressive reforms in a practical sense, and because the idea of an unelected group of right-wing ideologues setting our society’s course is inherently enraging and galvanizing. The more that Americans learn of the Court’s corruption and subversion of majority rule, the more they will rally to a president and a party that promises a re-balancing of the highest court in the land. Reminding Americans that Donald Trump stands ready to solidify a radical Supreme Court majority that rips away established freedoms while eviscerating our political paths to undoing the damage should be made central to Biden’s re-election bid. In politics, you are always at an advantage when you force your opponent to defend the indefensible; a strategy that highlights an out-of-control MAGA Supreme Court majority beloved of Trump and the GOP will do just that.