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Another Day, Another Supreme Court Scandal

Let's start here with some context. Every year, the Supreme Court Historical Society hosts a dinner, largely with the purpose of allowing right-wing activists to rub elbows with conservative Supreme Court justices. Lauren Windsor is a dues-paying member of the society, and attended this year's dinner (on June 3) under her real name, using a ticket she paid for.

And now, the dishonest parts. Although Windsor identifies as a progressive, she presented herself as a conservative Catholic during the dinner. Further, she did not reveal that she had a tape recorder in her pocket that was capturing her conversations. Note that neither of these things is illegal; you are free to tell people you're a conservative Catholic when you are not (unless this is done in service of some sort of fraud), while Washington, DC, is one-party consent when it comes to electronic recordings.

Anyhow, during the dinner, Windsor talked to both members of the Alito household. She first chatted with Justice Samuel Alito, who agreed with Windsor (in her character as a right-wing Catholic) that "people in this country who believe in God have got to keep fighting for that—to return our country to a place of Godliness." He also added:

On one side or the other—one side or the other is going to win. I don't know. I mean, there can be a way of working, a way of living together peacefully, but it's difficult, you know, because there are differences on fundamental things that really can't be compromised. They really can't be compromised. So, it's not like you are going to split the difference.

This is actually the exact same thing that Abraham Lincoln argued in 1858, although he was talking about slavery vs. anti-slavery, and not Christian vs. non-Christian.

Meanwhile, when Windsor talked to Martha-Ann Alito, the main topic of conversation was, of course, flags. As it turns out, Mr. Alito appears to have been telling the truth that Mrs. Alito was behind the flag displays, even if they fudged the timeline and the backstory a bit. Martha-Ann further told Windsor that she really wants to fly a Sacred Heart of Jesus flag in response to an LGBTQ flag in their neighborhood. The Sacred Heart flag is often used by far-right Christians to push back against LGBTQ people since, as we all know, Jesus was a big advocate of casting the first stone. Or, at least, the first flag. Alito also said she's holding off on the Sacred Heart flag for now, because the heat is on, but she's definitely going to get it up before Pride Month is over. She also warned that she will eventually get revenge on her critics. "There will be a way, it doesn't have to be now, but there will be a way they know," she said.

By our count, we are two days into the week, and we've thus far got two different Supreme Court scandals, between the Alitos' loose lips and Clarence Thomas' tendency to extend his hand, palm up. Will it have any impact, however? For obvious reasons, we are not optimistic. Pressure may eventually build for Congress to make changes to the Court, be that a retirement age, or term limits, or changing its jurisdiction, or expanding the number of justices, or something else. But that's not going to happen anytime soon, and it's not going to happen at all unless Democrats get the trifecta and kill the filibuster.

Term limits or a retirement age would require a constitutional amendment ratified by at least 38 states. That's exceedingly unlikely. However, Congress could pass a law stating that after, say, 18 years, a justice would be demoted to being on the circuit court of his or her choosing. Would that be constitutional? If Congress said "yes" and SCOTUS said "no," we'd be in a real pickle. One thing that is absolutely constitutional is Congress limiting the Court's jurisdiction. For example, a law forbidding the Court from hearing appeals on cases relating to reproductive rights would certainly be constitutional because the Constitution explicitly gives Congress the authority to limit the Court's jurisdiction on appellate cases. All that is needed is a law, not an amendment.

There is one other possibility, which we will pass along, just for completeness' sake. A couple of weeks ago, Rep. Jamie Raskin (D-MD), wrote an op-ed for The New York Times (sorry: paywall) in which he argues that the other seven justices have the power to disqualify Thomas and Alito from any cases where one or the other (or both) might have a conflict of interest. The Representative bases his argument on the Constitution and on 28 U.S. Code Section 455, which reads, in part:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Raskin observes that only members of the Supreme Court are called "justice," so the statute clearly applies to them. And he reviews jurisprudence from both the lower courts and the Supreme Court itself to make the case that, if a justice does not recuse voluntarily, then their colleagues have both a right and a duty to recuse them non-voluntarily.

We think it very, very unlikely that five of the seven non-Alito/non-Thomas justices on the court will agree with Raskin's thinking, and will be willing to flex their muscles in this particular way. That said, if the not-so-dynamic duo keeps embarrassing the Court, and undermining its integrity, you never know. (Z)

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