There Is Nothing Normal About a Corrupt SCOTUS

The recent disclosure of a secret recording among Justice Samuel Alito, his wife, Martha-Ann Alito, and Chief Justice John Roberts has reinforced long-held concerns about the ultra-conservative supermajority’s political influence dictating the Court’s decisions. 

Justice Alito, whose fundamentalist views have long been suspected to impose on his court opinions, was caught on a secret recording saying that people who believe in God must fight to “return our country to a place of godliness.” His wife, Martha-Ann, also came under fire for remarks indicating she uses flags to antagonize their neighbors who are fighting for equity and fairness. According to Politico, Martha-Ann Alito told Laura Windsor, the undercover documentarian who recorded the brazen comments, that she wanted to design a flag with the Italian word for shame in response to the pride flag. Her comments follow an upside-down American flag, a symbol of the January 6 insurrection, flying at two homes owned by the Alitos. 

Alito’s fundamentalist views would not surprise anyone paying attention to the decisions he has written in recent years. But rules of decorum and alleged political neutrality have hidden the sinister underbelly of a legal body with outsize influence in our democracy. Alito and Chief Justice Roberts have sidestepped calls for accountability and essentially positioned themselves and the Court as being beyond reproach. 

Madiba Dennie, the deputy editor and senior contributor at Balls and Strikes, co-director of the Democracy Committee of the New Jersey Reparations Council, and onetime counsel at the Brennan Center for Justice, has written the new book The Originalism Trap. Dennie explained there is a pattern and practice of behavior exhibited by the justices’ failures to demonstrate even an appearance of neutrality. And this is particularly important as we await the Court’s decision in Trump v. US, which could impact criminal proceedings in the Washington D.C. case against the former president for his actions in trying to overturn the 2020 election. 

“That’s not the kind of person you should have making any decision, but especially decisions about the actual insurrection and what potential consequences, if any, the former president could face for his role in the insurrection,” Dennie said. “We also have this justice who is coup curious at the minimum, and another justice whose wife was in the thick of it and planning some of the events on January 6. So it really indicates that they’re already in the bag for Donald Trump.”

Dennie explained that it’s deeply concerning to have this type of bad behavior from government actors at the highest level who act as if they can’t be held accountable. Over the past year, numerous articles exposed another corrupt Supreme Court Justice, Clarence Thomas who hadn’t disclosed accepting trips and gifts from far-right mega-donors like Harlan Crow. News reports earlier this month reveal that Thomas failed to disclose two additional trips funded by Crow in 2019. ProPublica previously broke the story about Thomas developing relationships with wealthy benefactors at a time when he was openly discussing his finances. He even complained to a GOP lawmaker about his salary being too low.

Dennie said the issue with Thomas is less about whether it’s an outright bribe and more likely the incentivizing him to delay retirement or take a more lucrative private sector job. While Alito and Thomas pose different issues for the Court, the rampant scandals and repeated flagrant violations of established rules and judicial principles make it clear that Roberts has failed in his stewardship as chief justice.

“We are well beyond the appearance of a conflict,” she said. “It simply does not make sense to simultaneously have an ethics code and also see the flagrant behavior that we’re seeing. These two things are in conflict. So it must mean that your ethics code is meaningless.” 

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Scrutiny of the Court is warranted considering the outsize influence nine people have on the collective well-being, rights, and freedoms of more than 300 million people. When the wives of two justices have supported the January 6 insurrection—either directly or indirectly—there is a real concern for the general welfare of the entire country. 

The leaders of the different branches no longer pretend to be objective arbiters interested in finding a middle ground. House Speaker Mike Johnson and other conservatives called for the Supreme Court to intervene after a unanimous Manhattan jury convicted former President Donald Trump of nearly three dozen felony counts. In a brazen post-verdict interview, Johnson insinuated that based on his personal relationships with some of the justices, he knew they were also “concerned” about the verdict. His statements came a day after Roberts claimed that “separation of powers” prevented judicial oversight by Congress. 

Indivisible co-executive director Leah Greenberg called Johnson’s remarks “a peak behind the curtain.” 

“It really underscores that for Roberts, ‘separation of powers’ only applies when it’s convenient for his partisan agenda or to cover for his corrupt colleagues on the conservative side of the bench,” Greenberg said. “Republicans all know that Roberts, Alito, and Thomas are in the tank for Trump. They expect their loyal foot soldiers on the court to do their dirty work for them, whether it’s stripping away our rights or making a mockery of the law to let Trump off the hook.”

Despite claims of “judicial independence” and “separation of powers,” the Court’s ultra-conservative majority has not demonstrated the will or capacity to regulate itself. Further, it disregards the basic premise of checks and balances, a key component of American democracy. 

“The argument we’re hearing from Justices Alito and Roberts is that the Court can check but cannot be checked,” Dennie said. “They are saying that the other co-equal branches of government can’t have any oversight function, which is at odds with both the text of the Constitution and the history of how various government actors have  followed the Constitution.”

She explained that the Constitution’s Necessary and Proper Clause authorizes Congress to exercise its power to pass any laws necessary and proper to execute its provisions. Dennie also explained that the Supreme Court takes its cue from Congress in many ways, including the oath administered to new justices, and can confirm and impeach justices.

“It wouldn’t make sense to say that they have the power to remove someone from the bench but not exercise any sort of oversight or review until that point,” she said. “Congress is responsible for appropriations for the judiciary. It sets the justices’ salaries. There are various ways that Congress outright regulates the Court.” 

Greenberg shared that efforts to hold the Supreme Court accountable are directly connected to preventing the consolidation of power by the far right. The stakes have always been high, but Greenberg says it’s important to peel back the layers and examine what is at play. 

“We can’t afford to let these partisan justices continue to pursue their extreme MAGA agenda from the bench,” Greenberg explained. “Our rights, freedoms, and democracy hang in the balance.”

She also noted that recent decisions made by the Court have made it more difficult to prevent school shootings, regulate air pollution, and undermine full participation in the political process such as voting. 

“The far-right supermajority on the court has done so much already that impacts us directly,” Greenberg said. “And this term, the supermajority is deciding on a new slate of decisions including Trump v. US—that puts our democracy directly in the hands of this stacked, untrustworthy Court.”

The question remains: Is there a way to get SCOTUS on the right track and not an extension of the rising trend toward fascism and anti-equity hate? According to Greenberg, if Roberts and the other ultraconservative justices on the Court actually cared about separation of powers or fundamental values of Constitutional fairness, they wouldn’t be making policy from the bench so often. 

Course correcting requires clarity of purpose and political will regardless of party. But when conservative members of Congress, even those who previously positioned themselves as institutionalists, focus on party and partisanship over democracy, there’s little hope for meaningful bipartisan action. 

“The Supreme Court has been stacked with far-right justices that were handpicked by Republican billionaires and dark money groups to roll back our constitutional rights and freedoms,” Greenberg said. “Congress must also pass real structural reforms, including both expansion and term limits, to unrig the MAGA supermajority on the Court.” 

Greenberg echoed calls from the pro-democracy movement for an enforceable code of ethics like the Supreme Court Ethics, Transparency, and Recusal Act (SCERT) co-introduced by Rep. Hank Johnson and Sen. Sheldon Whitehouse. But she said more needs to be done and called for Sen. Dick Durbin, chair of the Senate Judiciary Committee, to do more in his investigation of corruption within the Supreme Court.” 

“A code of ethics on its own isn’t enough to get SCOTUS back on the right track,” said Greenberg. “We can’t allow this level of blatant corruption and partisan BS to become normalized. Durbin and Democrats have a role in ringing the alarm bells, in exposing the truth, and in making it clear they’re willing to actually fight for our democracy.”