“Unequal Justice: The Treachery of Samuel Alito: His record of arch-conservatism makes him more closely akin to a Fox News host than a Supreme Court Justice.”, November 19, 2020, Bill Blum, The Progressive, at < https://progressive.org/
And
“Roe Will Fall. But the Supreme Court’s Legitimacy Is Already Lost”, May 2, 2022, Dahlia Lithwick, Slate, at < https://slate.com/news-and-
And
“The Supreme Court’s immense power may pose a danger to its legitimacy”, Sep 28, 2021, Richard L. Pacelle, Jr., The Conversation, at < https://theconversation.com/
Introduction by dmorista:
The U.S. Supreme Court, that has been a reactionary bulwark for most of its nearly 250 year history (217 years of which in the wake of the Marbury v Madison decision that definitively established the power and authority of the Supreme Court), is again sliding towards being an isolated institution serving the agenda of the oligarchs and the far right fanatics. The choice of Alito to write the draft opinion, that was apparently made by Clarence Thomas who is the senior justice who supported the decision (John Roberts who would have assigned the opinion writing did not join with the 5 other justices, he has a much more finely tuned awareness of the declining legitimacy of the court, but deferred to Thomas and the 5 far far right Justices).
Alito has a long history of working for the interests of the rich and has always been sneeringly dismissive of the rights, needs, and lives of the working people of this nation. Thomas knew exactly what he was doing when he assigned the draft to the loathsome Alito.
As for the general legitimacy of the U.S. Supreme Court it has been nose diving ever since the Senatorial maneuvering by Mitch McConnell to keep, Obama's nominee, Merrick Garland, from even receiving consideration; using the flimsy excuse that no new justice should be confirmed during an election year. That was a subterfuge that McConnell cast aside when the extremist Amy Coney Barrett was rapidly confirmed just a few weeks before the 2020 election.
The first article “Unequal Justice: The Treachery of Samuel Alito ...” specifically addressed the outrageous choice of Alito to write the draft opinion. The second and third articles address the more general questioin of Supreme Court's legitimacy, authority, and power. The Second article, “Roe Will Fall. But the Supreme Court’s Legitimacy Is Already Lost” looks at that legitimacy and authority including consideration of the situation after the leaked draft opinion; while the third article, “The Supreme Court’s immense power may pose a danger to its legitimacy”, was written earlier and takes a more general view of that developing situation.
Unequal Justice: The Treachery of Samuel Alito
His record of arch-conservatism makes him more closely akin to a Fox News host than a Supreme Court Justice.
I’ve changed my vote.
No, not that vote.
I’ve changed my vote for the most reactionary and dangerous member of the U.S. Supreme Court. The distinction no longer belongs to Clarence Thomas. Nor should it be reserved for any of the three conservatives appointed by President Donald Trump—Neil Gorsuch, Brett Kavanaugh, or Amy Coney Barrett.
The honor belongs to Samuel Alito. He’s earned it.
A long-time member of the ultraconservative Federalist Society, Alito has been a featured speaker at several of the group’s functions, voicing support for rightwing causes and regressive social values.
Nicknamed in progressive legal circles as “Strip-Search Sammy” for a dissenting opinion he wrote in 2004 as a Circuit Court of Appeals judge in Washington, D.C., in which he approved of the body search of an innocent ten-year-old girl, Alito was nominated to the Supreme Court by George W. Bush in 2005.
Alito’s selection was widely opposed by civil rights and civil liberties organizations, including the American Civil Liberties Union, which warned of his “troubling decisions on race, religion, and reproductive rights while sitting on the federal appeals court.” In its long and storied history, the ACLU has opposed only three other high-court nominees—William Rehnquist, Robert Bork, and Kavanaugh.
Despite these warnings, the Senate confirmed Alito’s appointment in January 2006. Since then, Alito has been everything the ACLU feared, endearing himself to the radical right by writing a series of contentious and controversial majority opinions, including:
Ledbetter v. Goodyear Tire & Rubber Co., 2007, dismissing a pay discrimination lawsuit brought by equality activist Lilly Ledbetter because it was not filed within 180 days. (The decision was effectively overturned by the Lilly Ledbetter Fair Pay Act, which was signed into law by President Barack Obama in 2009, following prodding by Justice Ruth Bader Ginsburg.)
McDonald v. City of Chicago, 2010, extending individual gun rights under the Second Amendment to the states.
Clapper v. Amnesty International USA, 2013, holding that American human rights activists had no standing to challenge government surveillance of their communications with persons located abroad.
Burwell v. Hobby Lobby Stores, 2014, exempting “closely held” corporations with religious objections from Obamacare’s provisions requiring employers to provide workers with health care insurance coverage of contraceptives.
Glossip v. Gross, 2015, ruling that the Eighth Amendment’s ban on cruel and unusual punishment does not prohibit states from using a sedative in lethal injection protocols that causes severe pain.
Husted v. A. Philip Randolph Institute, 2018, upholding Ohio’s vast 2016 purge of voting rolls.
Janus v. American Federation of State, County, and Municipal Employees, 2018, invoking the First Amendment to prohibit public-sector unions from collecting fees from non-union members to support collective bargaining activities.
Mitchell v. Wisconsin, 2019, upholding a warrantless blood alcohol sobriety test administered to an unconscious driver.
Hernandez v. Mesa, 2019, declaring that the family of a Mexican teenager shot and killed by a Border Patrol agent while standing in a culvert on the U.S. side of the border could not sue for damages in a U.S. court.
Alito’s arch-conservatism has also found its way into his dissenting opinions on the Supreme Court. In 2013, for example, he crafted a breathtakingly homophobic dissent in United States v. Windsor, which struck down key provisions of the federal Defense of Marriage Act. And this past July, he and Thomas displayed their fealty to President Trump, penning separate dissents in Trump v. Vance, the landmark 7-2 ruling that held the Constitution does not categorically block state criminal subpoenas issued to a sitting President.
As awful as his official court opinions have been, it is Alito’s behavior off the bench that has set him apart from his fellow jurists. In January 2010, shortly after the court issued its Citizens United decision (in which he, of course, concurred), he was infamously caught on national television sneering during Obama’s State of the Union address, mouthing the words “not true” as the President decried the ruling and the effect it would—and did—have on future elections.
A long-time member of the ultraconservative Federalist Society, Alito has been a featured speaker at several of the group’s functions, voicing support for rightwing causes and regressive social values. Although it is not unusual for Supreme Court Justices to participate in bar association meetings or academic conferences, Alito discarded all pretense of judicial impartiality in his most recent Federalist Society appearance in a Zoom webinar speech, delivered on November 12, keynoting the society’s prestigious annual national lawyers convention.
Sounding like a Fox News host spouting the familiar and incendiary talking points of conservative victimhood, Alito called the Second Amendment “the ultimate second-tier Constitutional right.”
In a similar fashion, Alito blasted federal regulatory agencies for churning out “huge volumes of regulations” that, he insisted, shifted policymaking from elected legislators to “an elite group of appointed experts.” And he went even further into the nether reaches on the subject of same-sex marriage, charging that “you can’t say that marriage is the union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
But it was on the subject of COVID-19 that Alito reached his apogee. He said the recent restrictions imposed in some states on the size of religious gatherings “has resulted in previously unimaginable restrictions on individual liberty.” There was nary a nod to slavery, the internment of Japanese Americans, or segregation.
If Alito were still sitting on a lower court, his unhinged commentary could be grounds for disqualification. Supreme Court Justices, however, are not subject to the Code of Conduct for United States Judges. They are beyond the reach of sanctions for conflicts of interest or bias. In a very real sense, they are above the law they are tasked with interpreting and upholding. That is what makes them “supreme.”
Alito understands the awesome power that his lifetime appointment has given him. More than any other member of the high tribunal, he has opted to abuse that power for nakedly partisan ends, making him little more than a political firebrand draped in a black robe.
The Supreme Court’s Legitimacy Is Already Lost
Regardless of Roe falling, the leaks, and the court’s disregard for the public it is supposed to serve, have already gone too far.
Police officers move barriers as activists gather at the U.S. Supreme Court on Monday. Stefani Reynolds/Getty ImagesIf the Supreme Court indeed strikes down Roe v. Wade and Planned Parenthood v. Casey this June, as the draft opinion leaked to and published by Politico tonight suggests it will, years of conventional wisdom about the court and its concerns for its own legitimacy will be proved wrong. Every single court watcher who spoke in terms of baby steps, incrementalism, or “chipping away” at one of the most vitally important precedents in modern history will have been wrong. Those who suggested the court would never do something so huge and so polarizing just before the November midterms will have been wrong. And the people who assured us that Brett Kavanaugh and Amy Coney Barrett were moderate centrists who cared deeply about the appearance of a nonideological and thoughtful court—well, yeah. They will have been wrong too.
If this draft opinion becomes precedent of the court, the results will be catastrophic for women, particularly for women in the states that will immediately make abortion unlawful, and in those places, particularly for young women, poor women, and Black and brown women who will not have the time, resources, or ability to travel out of state. The court’s staggering lack of regard for its own legitimacy is exceeded only by its vicious disregard for the real consequences for real pregnant people who are 14 times more likely to die in childbirth than from terminating a pregnancy. The Mississippi law—the law this opinion is upholding—has no exception for rape or incest. We will immediately see a raft of bans that give rights to fathers, including sexual assailants, and punish with evermore cruelty and violence women who miscarry or do harm to their fetuses. The days of pretending that women’s health and safety were of paramount concern are over.
For all the shock that has been expressed at what is truly a shocking opinion, polling suggests that the American public may turn its shock into legitimate political anger. CNN polling from January showed that just 30 percent of Americans wanted the court to overturn Roe v. Wade, and 52 percent said that should Roe be overturned, they would want their state to become a safe haven for women seeking abortion. Thirty-five percent said they would be angry if the ruling were overturned, compared with just 14 percent who said they would be happy.But in his draft opinion, Justice Sam Alito wants America to know he doesn’t care about voters’ feelings. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito writes. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
Ironically, whoever decided to leak the opinion cared very much about the political implications of the impending decision. It is one of the most brazenly political acts to ever come out of the court, actually. It is perhaps the most emphatic confirmation that there are simply no rules left at an institution that is supposed to be the one making the rules, but is instead currently under unprecedented public scrutiny for its very absence of binding rules. The same Supreme Court that blames journalists for its sinking polling numbers and refuses to be bound by ethics rules wants you to know that it doesn’t answer to politics. But it surely produces politics.
In other words, in addition to Alito’s sneering references to “abortionists” and eugenics and his gleeful mockery of the authors of both Roe and Casey, anyone who believed the court would pretend to have any solicitude whatsoever—for women, for public opinion, for its own reputation as a moderate branch—was well and truly kidding themselves. This draft opinion, whatever may be done to it in the days to come, is Exhibit A for anyone who believed that time or history or respect for their colleagues or the justices who came before them would moderate the five justices in this current majority, a majority that ought to know it stole its way into a majority but again refuses to even feign self-moderation in the face of that fact. We knew this when Texas’ S.B. 8 law banning abortion after six weeks was decided on the shadow docket in September, and when the court let it stand again this winter. We knew it when we watched the Dobbs arguments last fall. Roe had already been effectively overturned then—we have just had trouble catching up.
It is hard to keep this in perspective tonight, in light of the shattering ruling it portends, but there are real and enduring consequences to the fact that the draft opinion was leaked. There are real and enduring consequences to the fact that someone told Politico what the vote count was, that “four of the other Republican-appointed justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.” There are real and enduring consequences to the fact that we now seem to know what Chief Justice John Roberts wants to do, already. The implications for trust and confidence in secret proceedings for the nine justices are stunning. The leaks from the court around Justice Neil Gorsuch declining to wear a mask at oral arguments this winter were a dry run for today’s. Whatever norm had been keeping the justices from showing us their Real Housewives of 1 First Street antics is now gone as well.
The court will surely suffer for this shattering self-own to its own legitimacy. But the rule of law and the public will suffer as well. The three Republican-appointed justices who authored the plurality opinion in Casey knew very well what would happen to the court if it disregarded and disparaged the American public, the Constitution, and itself. Be afraid for what’s coming next in terms of personal autonomy and liberty, for LGBTQ protections and the right to contraception, yes. But be equally afraid for the abstraction of an independent and principled judiciary. No matter what happens next, that’s already lost.
The Supreme Court's Immense Power May Pose a Danger to Its Legitimacy
The first Monday in October is the traditional day that the U.S. Supreme Court convenes for its new term. Analysts and soothsayers carefully read the signals and forecast the direction the court will take. This year the scrutiny seems a little more intense, as the court takes up several highly charged cases.
Alexander Hamilton famously thought the judiciary would be the weakest branch of government. He recognized that the Supreme Court lacked “the sword and the purse” and could not enforce or implement its own decisions. Rather, it would need to rely on the good offices of the other branches.
As a student of the Supreme Court, I have examined how the power and authority of the Court have waxed and waned over the centuries. The modern Supreme Court, dating back to Brown v. Board of Education in 1954, is one of the most powerful tribunals in the world and across history.
That immense power has arguably made the court a leading player in enacting policy in the U.S. It may also cause the loss of the court’s legitimacy, which can be defined as popular acceptance of a government, political regime or system of governance.
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