Supreme Injustices
By David Swanson
Welcome back to Culture Club, the weekly feature where Talia and I discuss our preoccupations—what we’ve been thinking about, reading, watching or playing—for premium subscribers.
On Thursday, the New York Times published a story by Jodi Kantor reporting that, in the days after the January 6 insurrection at the Capitol, Chief Justice Samuel Alito had flown an upside down flag outside his suburban Virginia home. He didn’t deny it, and he didn’t apologize. What he did do is blame his wife.
While it may be true that Martha-Ann Alito was behind the flag incident, it doesn’t change the fact that her husband is full of shit. As Jeffrey Toobin reported in The Nine: Inside the Secret World of the Supreme Court, Alito made his politics clear in an application letter he wrote in the eighties, when he sought a position in the Reagan administration as deputy assistant attorney general. “I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed,” he wrote, “and that the Constitution does not protect a right to an abortion." When Alito was nominated for the Supreme Court two decades later, he disavowed the letter, telling the Senate Judiciary Committee to ignore his earlier pronouncements: "When someone becomes a judge you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues."
It would take another two decades for Alito to prove that we should have believed him the first time around. In June 2023, he joined the conservative majority in Students for Fair Admissions v. Harvard, dealing a death blow to affirmative action. The year before, he wrote the majority opinion for Dobbs v. Jackson Women's Health Organization, striking down Roe v. Wade, and a woman’s right to abortion. The damage was done. Last summer, in the wake of these decisions, the Supreme Court sank to its lowest approval rating on record at 44%, down from 80% thirty years before. For this week’s deep dive, I decided to go through the media’s coverage of the Supreme Court in the intervening three decades, to get a better understanding of how how the highest court in the land squandered the good will of the American people.
I wanted to focus on the current court, in particular the six conservative justices, so I started with Thomas’s fraught confirmation hearing in 1991, when he was accused of sexual harassment by Anita Hill. Less than a decade later, in 2000, the Supreme Court’s 5-4 majority in Bush v. Gore shattered the fantasy that the justices operated above the political fray by handing the White House to George W. Bush. It was “quite demonstrably the worst Supreme Court decision in history,” in the words of one legal scholar I’ve quoted below. Somehow things have only gotten worse. In addition to its assault on democracy, civil rights, and women’s health, the Roberts Court opened up the dark money floodgates with Citizens United, and—in the cases of Thomas and Alito, anyway—benefited from the same conservative benefactors so intent on remaking America. The articles I’ve collected cover all of this, in addition to definitive magazine profiles of the six conservative Justices.
In the wake of Bush v. Gore, the scholar I quoted earlier feared just this kind of anti-democratic retrenchment: “The court has returned to its historic conservative role, rushing to aid the political party of property and race privilege in a debased partisan way.” That scholar was Jamie Raskin, writing in 2001. Today, Raskin represents Maryland’s 8th District in the House of Representatives, and has become one of Congress’s most outspoken advocates for Supreme Court accountability and judicial reform. But at the time he was a constitutional law professor who saw, on the horizon, the dangers ahead. “From Zero Tolerance in the high schools to the War on Drugs to shrinking privacy to racial profiling, we need a movement to restore the meaning of our Bill of Rights in the institutions of society,” Raskin wrote in Washington Monthly. “It is time for the people to take the Constitution back from the court.”
She Said, He Said
By Jill Smolowe
Time, October 21, 1991
It was hard to imagine two more unlikely or reluctant witnesses. On one side of the divide was Anita Hill, 35, a specialist in the dry area of commercial law, a reserved woman who by all accounts is given more to listening than to talking. On the other was Clarence Thomas, 43, a courtly man who from his college days has enjoyed a reputation for treating women with particular courtesy and respect. Yet there she was, this prim law professor from the University of Oklahoma, seated in the glare of klieg lights before the Senate Judiciary Committee, calmly detailing graphic charges of sexual harassment against the man who until last week seemed virtually certain to be confirmed as the next Justice to the Supreme Court.
He said, "I have not said or done the things Anita Hill has alleged."
She said, "I am not given to fantasy. This is not something I would have come forward with if I was not absolutely sure of what I was saying."
For witnesses to this spectacle, whether there in the Senate Caucus Room or at home in their living rooms, deciding who was telling the truth was all but impossible.
How the Republicans and One Weak-Kneed Democrat—Joe Biden—Suppressed the Truth About Clarence Thomas and Saved His Nomination
By Lynda Edwards
Spy, March 1992
As soon as Majority Leader George Mitchell announced that Biden alone would determine the time and duration of any further inquiry, the White House, under the direction of presidential counsel C. Boyden Gray, began to terrorize him. Aides to Gray and to Ken Duberstein, the public-relations man who was handling Thomas for the White House, met with Biden to work out the particulars. Biden sat behind his desk. Thomas's handlers stood. They shouted at Biden, called him a racist and then flopped a brown folder on his desk. Inside was a stack of editorials from The Wall Street Journal that had run during Clarence Thomas's U.S. Court of Appeals confitmation hearings in 1990. The editorials accused Biden of having launched a malicious, biased "fishing expedition" in search of anti-Thomas documents. One editorial was headlined—does this sound familiar?—THE NEXT LYNCHING.
The Hill-Thomas Mystery
By Kathleen M. Sullivan
The New York Review of Books, August 12, 1993
He had spoken to her, she said, of sex scenes from pornographic films—“sex with animals,” “group sex,” “individuals with large penises,” including “Long Dong Silver,” and “individuals with…large breasts.” She testified that he had once asked, “Who has put pubic hair on my Coke?” And she testified that he had told her “graphically of his own sexual prowess,” “referred to the size of his own penis as being larger than normal,” and spoken “of the pleasures he had given to women with oral sex.”
Thomas “unequivocally, categorically” denied that he ever “had conversations of a sexual nature or about pornographic material with Anita Hill,” or ever “had a personal sexual interest in her.” “This is a person I have helped at every turn in the road since we met,” he testified, and their relationship had been strictly cordial, civil, and professional. When asked where her allegations might have come from, he said he had “been racking my brains” and “eating my insides out” trying to imagine but had no clue. Airing such unfathomable charges before television cameras, he said, was a “high-tech lynching for uppity blacks who in any way deign to think for themselves.”
Bandits in Black Robes
By Jamin Raskin
Washington Monthly, March 2001
If President Bush has no mandate to pack the courts with more zealots, Senate Democrats do have a strong mandate to stop the court's slide from untenable conservative ideology to blatant Republican partisanship. The Democrats must not conduct business as usual, the kind they gave us with the unanimous 1986 confirmation of Antonin Scalia. If Democrats take the path of least resistance and confirm right-wing corporate lawyers and platitude-spouting bureaucrats like Clarence Thomas promoting the Federalist Society agenda, there will be hell to pay for the Bill of Rights and public welfare generally. Indeed, it has been the Democrats' wimpiness in challenging Republican judicial nominees that helped to create the five justice Bush majority.
The Most Dangerous Branch?
By Simon Lazarus
The Atlantic, June 2002
How far will the Court pursue its federalist project? Will it ultimately align the law with the conservative Northwestern law professor Gary Lawson's view that "the post-New Deal administrative state is unconstitutional"? Will the velocity of change increase if the current, shaky 5-4 majority becomes a rock-solid 6-3 or 7-2? Or will Justice O'Connor or Justice Kennedy team with pragmatic conservative appointees and centrists in the current minority to shape a moderate, "mend it, don't end it" approach to federal regulatory excess? The bet here is that the new federalists will continue on their way without missing a beat absent engagement in the issue by the President or Congress. And if Bush v. Gore taught us anything, it is that when Justices Rehnquist, Scalia, and Thomas know their destination, they will not worry about breaking doctrinal china to get there.
The Path to Florida
By David Margolick
Vanity Fair, October 2004
Shortly after the presidential vote in November 2000, two law clerks at the United States Supreme Court were joking about the photo finish in Florida. Wouldn’t it be funny, one mused, if the matter landed before them? And how, if it did, the Court would split five to four, as it so often did in big cases, with the conservative majority installing George W. Bush in the White House? The two just laughed. It all seemed too preposterous.
Sure, friends and relatives predicted that the case would eventually land in their laps, but that was ignorant, naïve talk—typical of people without sophisticated legal backgrounds. A majority of the justices were conservatives, but they weren’t partisan; mindful of the Court’s fragile authority, the justices had always steered clear of messy political spats. Moreover, the very jurists who’d normally side with Bush were the ones most solicitous of states’ rights, most deferential to state courts, most devoted to the Constitution’s “original intent”—and the Founding Fathers had specifically provided that the Congress, not the judiciary, would resolve close elections. To top it off, the Court rarely took cases before they were ripe, and the political process in Florida was still unfolding. “It was just inconceivable to us that the Court would want to lose its credibility in such a patently political way,” one of the clerks recalls. “That would be the end of the Court.”
The Unregulated Offensive
By Jeffrey Rosen
The New York Times, April 17, 2005
The idea of creating a network of activist conservative litigation groups was proposed in the early 70's by Lewis Powell, a corporate lawyer and future Supreme Court justice. In the years following the defeat of the Goldwater Republicans in 1964, conservatives were casting about for a new political strategy. At the same time, business interests were alarmed by the growth of the regulatory state and, in particular, the marked increase in environmental litigation. In 1971, Powell wrote a landmark memo for the United States Chamber of Commerce urging a counterattack. In addition to encouraging conservatives to develop a systematic and long-term effort to spread their ideas in the media, Powell recommended that conservatives should get over their aversion to judicial activism. "Especially with an activist-minded Supreme Court," he wrote, "the Judiciary may be the most important instrument for social, economic and political change."
The Court: How ‘So Few Have So Quickly Changed So Much’
By Anthony Lewis
The New York Review of Books, December 20, 2007
On the issue that moved them most deeply, abortion, conservatives were at odds with a substantial majority of Americans. A Quinnipiac University poll this year asked a sampling of registered voters, “Do you agree or disagree with the 1973 Roe v. Wade Supreme Court decision that established a woman’s right to an abortion?” In reply, 62 percent said they agreed, 32 percent disagreed.
But legal conservatives would not regard such public views as relevant. Their complaint is that the Supreme Court had no warrant in the language of the Constitution for finding a right to abortion. To an originalist like Justice Scalia, the fact that the framers of the Fourteenth Amendment did not intend to protect a right to abortion ended the matter.
Why Originalism Is So Popular
By Eric A. Posner
The New Republic, January 13, 2011
Even as discussion about the original meaning of the Constitution becomes more common on the Court, the left/right division between Supreme Court justices will be plain as ever. This is especially so because originalism unsettles precedent, permitting both liberal and conservative justices to disregard earlier decisions that rub them the wrong way.
In addition, as Republicans gain more power, their commitment to originalism will look ever more inconsistent. Institutional commitments in politics don’t run very deep. Republicans already championed federal marriage legislation, even though the Constitution gives Congress no power to regulate family relations; and during the Bush administration, constitutional constraints on executive power were forgotten. This will surely happen again the next time the Republicans take control of the government, and they can only hope that their earlier blandishments about the original understanding of the Constitution will have been forgotten.
Money Unlimited
By Jeffrey Toobin
The New Yorker, May 14 2012
Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.
Little Scalia
By Simon van Zuylen-Wood
New York, May 2018.
During the campaign, Trump’s stated preference for a Scalia replacement was a Scalia clone. So he tapped the leader of the Federalist Society, Leonard Leo, to find him one. With Leo’s help, Trump produced two lists of acceptable candidates. According to one study, Gorsuch was the third-most-“Scalian” of the nominees, based on everything from his originalist jurisprudence to his penchant for dashing off solo opinions. But his outward gentility cloaked his hard-line instincts, making it hard for Democrats to rally against his nomination. Perhaps more important, he was among the youngest of Leo’s all-stars and therefore likeliest to deliver conservative wins for decades. Trump announced his choice, The Bachelor style, on national television.
When the Supreme Court Lurches Right
By Emily Bazelon
The New York Times Magazine, August 22, 2018
Since the 1930s, justices who served as swing voters or drifted ideologically have made it possible to think about the court in nonpartisan terms. Kavanaugh’s confirmation will probably break this long tradition. He represents the fulfillment of the dearest political wish for two generations of the conservative movement. Kavanaugh is a D.C. insider who has taken conservative positions as an appellate judge, and he has been a member of the Federalist Society since 1988, participating, for example, by hosting a dinner for admitted Yale law students in April. Barring a late-breaking surprise, the fifth and decisive brick of a conservative Supreme Court wall is about to be put into place. In the controversial cases that shape the public’s perception of the court, we can expect to see a full-blown partisan divide, with the conservative bloc, all Republican appointees, facing off against four liberal-moderates chosen by Democratic presidents.
The Supreme Court Is Headed Back to the 19th Century
By Adam Serwer
The Atlantic, September 4, 2018
The Roberts Court is poised to shape American society in Trump’s image for decades to come. All three branches of the federal government are now committed to the Trump agenda: the restoration of America’s traditional racial, religious, and gender hierarchies; the enrichment of party patrons; the unencumbered pursuit of corporate profit; the impoverishment and disenfranchisement of the rival party’s constituencies; and the protection of the president and his allies from prosecution by any means available. Not since the end of Reconstruction has the U.S. government been so firmly committed to a single, coherent program uniting a politics of ethnonationalism with unfettered corporate power. As with Redemption, as the end of Reconstruction is known, the consequences could last for generations.
A conservative activist's behind-the-scenes campaign to remake the nation's courts
By Robert O'Harrow, Jr. and Shawn Boburg
The Washington Post, May 21, 2019
At a time when Trump and Senate Majority Leader Mitch McConnell are rapidly reshaping federal courts by installing conservative judges and Supreme Court justices, few people outside government have more influence over judicial appointments now than [Leonard] Leo.
He is widely known as a confidant to Trump and as executive vice president of the Federalist Society, an influential nonprofit organization for conservative and libertarian lawyers that has close ties to Supreme Court justices. But behind the scenes, Leo is the maestro of a network of interlocking nonprofits working on media campaigns and other initiatives to sway lawmakers by generating public support for conservative judges.
The story of Leo’s rise offers an inside look into the modern machinery of political persuasion. It shows how undisclosed interests outside of government are harnessing the nation’s nonprofit system to influence judicial appointments that will shape the nation for decades.
Is Brett Kavanaugh Out For Revenge?
By McKay Coppins
The Atlantic, June 2021
As much as the modern Court clings to its image as an apolitical institution—enlightened, black-robed figures dispensing wisdom from on high, guided by love of country and Constitution—the truth is that its members have always been swayed by politics, ego, and grievance. After Clarence Thomas’s confirmation was nearly quashed in 1991 by accusations of sexual harassment, he retreated into a cocoon of allies and ideologues, rarely speaking in public even as he became one of the most right-wing justices in recent history. Some wonder whether Kavanaugh will follow the same trajectory. It was he, after all, who spoke in that infamous Senate hearing about the country reaping “the whirlwind” and suffering “consequences” in a way that led many to believe he was issuing threats. “As we all know,” he told the senators who were questioning him, “in the United States political system of the early 2000s, what goes around comes around.”
Amy Coney Barrett’s Long Game
By Margaret Talbot
The New Yorker, February 7, 2022
In public, most conservatives deride the notion that a jurist’s cultural background might influence her decisions, let alone make her a better judge. At Sonia Sotomayor’s confirmation hearings, in 2009, Republican senators denounced her for having argued, in a speech, that “a wise Latina” might fruitfully draw on her life experience—in her case, as a Puerto Rican New Yorker—in her jurisprudence. But many conservatives were eager to spotlight Barrett’s identity, because it suggested an imperviousness to public-opinion polls and the disapproval of coastal élites. Nance told me that, on a “Women for Amy” bus tour that she had organized to generate enthusiasm for Barrett’s confirmation, “older women in particular would come up to us with tears in their eyes saying that they have been waiting their whole lives for a conservative woman to be appointed to the court.” (O’Connor, Ronald Reagan’s appointee, who helped forge the compromise in Casey that preserved abortion rights, apparently didn’t count.)
Supreme Court has voted to overturn abortion rights, draft opinion shows
By Josh Gerstein and Alexander Ward
Politico, May 2, 2022
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision—Planned Parenthood v. Casey—that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Justice Alito’s Crusade Against a Secular America Isn’t Over
By Margaret Talbot
The New Yorker, August 28, 2022
For Alito, Dobbs was also the culmination of a sixteen-year effort to make his mark on the Court. When he first became a Justice, he was often portrayed as a Mini-Me of another Italian American Catholic from Trenton: Antonin Scalia. Some commentators even referred to him as Scalito. But, although the two Justices frequently voted together, they were different in ways both temperamental and jurisprudential. Alito could be as acerbic in his writing as the irrepressible Scalia, but he rarely seemed to be having as good a time. Scalia’s bold commitment to originalist readings of the Constitution sometimes led him to outcomes that he, as a law-and-order type, didn’t much like, such as supporting the First Amendment claims of a flag-burning protester or upholding the Fourth Amendment rights of criminal defendants. Alito adopted a more elastic form of originalism which has allowed him, with plodding consistency, to arrive at results that a loyal Republican would prefer.
Ginni and Clarence: A Love Story
By Kerry Howley
New York, June 21, 2023
There is considerable ambiguity about what various participants in the invasion of the Capitol on January 6 were doing. There is no ambiguity about what Ginni Thomas was doing. She was trying to overthrow the government. Biden had been elected on November 3. On November 5, Ginni seemed to think everything had been taken care of. The “Biden crime family & ballot fraud co-conspirators,” she wrote in a text to the president’s chief of staff, “are being arrested & detained … & will be living in barges off GITMO to face military tribunals for sedition.” On November 9, she sent dozens of Arizona lawmakers emails asking them to choose their own electors (that choice being “yours and yours alone”) rather than let Biden take the state he had won. “Help This Great President stand firm, Mark!!!,” she wrote to Meadows the next day. “You are the leader, with him.” November 19: “The intense pressures you and our President are now experiencing are more intense than Anything Experienced (but I only felt a fraction of it in 1991).”
Here she had been obsessing this whole time, and here now, three decades after the hearings, ten years after the voice-mail, the very old man who presided over the hearings had come back to thwart her. Of course it was connected.
Behind the Scenes at the Dismantling of Roe v. Wade
By Jodi Kantor and Adam Lipta
The New York Times, December 15, 2023
In overturning Roe, the court set aside more than precedent: It tested the boundaries of how cases are decided.
Justice Ginsburg’s death hung over the process. For months, the court delayed announcing its decision to hear the case, creating the appearance of distance from her passing. The justices later allowed Mississippi to perform a bait-and-switch, widening what had been a narrower attempt to restrict abortion while she was alive into a full assault on Roe — the kind of move that has prompted dismissals of other cases.
The most glaring irregularity was the leak to Politico of Justice Alito’s draft. The identity and motive of the person who disclosed it remains unknown, but the effect of the breach is clear: It helped lock in the result, The Times found, undercutting Chief Justice Roberts and Justice Breyer’s quest to find a middle ground.
Friends of the Court: SCOTUS Justices’ Beneficial Relationships With Billionaire Donors
By Justin Elliott, Joshua Kaplan, Alex Mierjeski and Brett Murphy
ProPublica, 2023
This spring, ProPublica reported that Justice Clarence Thomas received decades of luxury travel from another Republican megadonor, Dallas real estate magnate Harlan Crow. In a statement, Thomas defended the undisclosed trips, saying unnamed colleagues advised him that he didn’t need to report such gifts to the public. Crow also gave Thomas money in an undisclosed real estate deal and paid private school tuition for his grandnephew, who Thomas was raising as a son. Thomas reported neither transaction on his disclosure forms.
The undisclosed gifts have prompted lawmakers to launch investigations and call for ethics reform. Recent bills would impose tighter rules for justices’ recusals, require the Supreme Court to adopt a binding code of conduct and create an ethics body, which would investigate complaints. Neither a code nor an ethics office currently exists.
“We wouldn’t tolerate this from a city council member or an alderman,” Sen. Dick Durbin, an Illinois Democrat and chair of the Senate Judiciary Committee, said of Thomas in a recent hearing. “And yet the Supreme Court won’t even acknowledge it’s a problem.”
How 'History and Tradition' Rulings Are Changing American Law
By Emily Bazelon
The New York Times, April 29, 2024
Originalism resembles the history-and-tradition test in focusing on the past. But its main selling point was to fix the meaning of the Constitution to the moment in which it was written, to prevent judges from substituting their values for the wisdom of the nation’s founders.
Though originalism in practice never lived up to this promise, because judges used it inconsistently or to reach the results they preferred, “history and tradition,” unlatched from any one moment, is even more pliable and indeterminate. It lets judges choose from a vast array of sources, which makes it easy to cherry-pick.
Skeptics of the history-and-tradition standard received some validation from an unlikely source. At a talk at Catholic University’s law school in September 2023, Justice Amy Coney Barrett, a former Scalia clerk who joined Alito’s opinion in Dobbs, used an old saying to warn that a judge’s hunt for historical sources could be like “looking over a crowd and picking out your friends.”
At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display
By Jodi Kantor
The New York Times, May 16, 2024
The longstanding ethics code for the lower courts, as well as the recent one adopted by the Supreme Court, stresses the need for judges to remain independent and avoid political statements or opinions on matters that could come before them.
“You always want to be proactive about the appearance of impartiality,” Jeremy Fogel, a former federal judge and the director of the Berkeley Judicial Institute, said in an interview. “The best practice would be to make sure that nothing like that is in front of your house.”
The court has also repeatedly warned its own employees against public displays of partisan views, according to guidelines circulated to the staff and reviewed by The Times. Displaying signs or bumper stickers is not permitted, according to the court’s internal rule book and a 2022 memo reiterating the ban on political activity.
Asked if these rules also apply to justices, the court declined to respond.
