Conservative Supreme Court Justices do MAGA world's bidding
Get the Point!
During my first year at the University of Florida Levin College of Law, Professor Emeritus Stuart Cohn strode to the lectern of our first session of his Jurisprudence (legal philosophy) class and posed a simple question that ignited a debate:
"What is the law?"
After a number of us had finished waxing philosophically while giving our best answers for nearly an hour and a half, Cohn cracked a smile and ended the period with a simple statement: "the law is whatever we, the people, deem it to be..."
The sublimely brilliant UF Law Professor Emeritus Stuart Cohn ranks among Ol’ Hobbs’s top five all-time favorite teachers…
I often think of Prof. Cohn's words when situations arise that highlight how very fragile our democracy is in the United States, with my most recent reflections centering around U.S. Supreme Court Justices Clarence Thomas and Samuel Alito and calls for both to recuse themselves from legal proceedings involving former President Donald Trump and the January 6th MAGA rioters and conspirators.
For those who haven't been paying close attention, please note that Virginia "Ginni" Thomas, the lawyer/lobbyist wife of Justice Clarence Thomas, was neck deep in the so-called "Stop the Steal" efforts that then President Trump and his advisers were waging to prevent the lawful transition of power from his administration to then President-elect Joe Biden in late 2020 and early 2021.
Clarence and Ginni Thomas seated next to Sen. Mitch McConnell (R-Ky) at an event…
Separately, Justice Alito has confirmed that an upside down American flag flew at his home during this same period; such displays were a symbol of solidarity among Trump's "Stop the Steal" supporters who stormed the Capitol Complex on January 6, 2021.
Neighbors snapped a photo of an upside down American flag at Justice Samuel Alito’s home circa January 2021. Many Trump supporters flew the flag in this manner to support his claims that the 2020 election had been stolen.
In my humble estimation, one needn't be a constitutional law scholar, active or inactive lawyer, law student, or lay legal enthusiast to conclude that Justice Thomas and Justice Alito should sit out any cases involving anyone charged with criminal conduct relating to the January 6th MAGA riot—or the conspiracy leading up to that dastardly event.
Five people died, and over $50 million in property damage resulted from then President Donald Trump’s supporters storming the Capitol Complex in 2021.
But here we are, with various appellate cases and controversies stemming from those riots currently under consideration by the U.S. Supreme Court, and both men defiantly refuse to do the right thing by gracefully bowing out.
As one who has studied and practiced law, trust when I tell you that the decision to recuse is not rocket science; judicial canon requires that both judges and litigants "avoid even the appearance of impropriety" in legal cases.
Now, the overwhelming majority of judges and litigators adhere to this standard without exemption, but there are others, most ominously among the judicial class, who believe themselves "untouchable" and self-righteous even when their dealings are wholly unrighteous. In the instant matters, Justices Thomas and Alito are exhibits A and B of this lamentable double standard.
The Supreme Court Nine…
To be clear, today's blog is as far from being partisan as can be, and I assure you that if liberal Justices Elena Kagen, Sonia Sotomayor, or Ketanji Brown Jackson had similar conflicts of interest, I would be among the loudest voices crying out for their immediate recusal so as to ensure "fair and impartial" proceedings.
Regrettably, we live in an era in which partisanship IS the order of everything for far too many Americans, which is why both Thomas and Alito are comfortable in their intransigence when both are experienced enough to know that their presence on these cases is a present to the parties legally deemed responsible for anarchy and sedition on January 6th by several lower courts.
As neither has the honor to recuse, it is important to know that their colleagues, both liberal and conservative, can call for their disqualification pursuant to 28 U.S.C. Section 455. This provision provides in pertinent part that:
"Any JUSTICE, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Again, the statutory construct provides that "any JUSTICE" (meaning Thomas and Alito) "SHALL" (meaning mandatory—not optional) "disqualify himself in ANY PROCEEDING IN WHICH HIS IMPARTIALITY MIGHT REASONABLY BE QUESTIONED."
Alas, it's all so simple in legal theory, but it isn't simple in legal reality because words like "shall" don't mean much to those so consumed with power—and maintaining power—that they interpret the laws that we, the people (through Congress) have passed in a way that's most favorable to their point of vantage!
Again, this isn't rocket science: if your wife was a part of the "Stop the Steal" legal and lobbying team, then you sure shouldn't sit in judgment on any case or controversy involving "Stop the Steal" or flowing from the same series of events. If you, Alito family, chose to fly the flag upside down at your home the same way that the "Stop the Steal" and January 6th MAGA rioters did (and still do), then you sure shouldn't sit in judgment on any case or controversy involving "Stop the Steal" or flowing from the same series of events!
The Defiant Duo, Justices Alito and Thomas
The essential question now is whether the other seven members of the Supreme Court have the intestinal fortitude to call their judicial cronies all the way out? With conservatives still holding a 4-3 majority even without Thomas and Alito, one would think that the other justices would force recusal to give at least the appearance of impartiality?
But with time winding up, methinks that nothing will change the status quo and that Thomas and Alito will stay on these cases, vote according to their personal interests, and harbor no shame in so doing! And if they do, the shame will be on we, the people, for not forcing adherence to what we have deemed to be OUR laws!
Lest we forget...