Vergogna Means Shame

Alito is the Q-Anon Shaman of the SCOTUS Coup

Something snapped in me while listening to the Supreme Court’s session at which Donald Trump’s lawyers made the case that he as president had immunity while committing his manifold crimes. It was clear that the most extreme of the right wing justices on the court—Alito and Thomas in particular—were giving a sympathetic hearing to a preposterous idea. Even though the American Revolution had been fought in part to reject the idea that anyone—in that case a king—should be above the law, they were entertaining the idea because it suited them politically. Even though the notion of presidential immunity is mentioned nowhere in the Constitution, they were giving the idea serious credence because…well, because they could.

Regardless of how the justices rule in the matter—and we will hear their decision within days—the court’s right wing majority once again demonstrated that they are something new in American life, a throwback to the lords who ruled over Italian cities in the Renaissance or Grand Inquisitors claiming the power of Heaven to enable them to impose their whims on the rest of us mere mortals who had the misfortune of living at the same time as them.

We are not living at a time of business as usual for the Supreme Court, no matter what Chief Justice Roberts might argue. Roberts was quoted in a new Rolling Stone piece that featured him and Alito in conversation with an undercover journalist, as saying ““The idea that the court is in the middle of a lot of tumultuous stuff going on is nothing new.” With this remark, the Chief Justice was playing the essential role he has embraced on the court, normalizing the abnormal. In even tones he pooh poohs suggestions that this court, the most corrupt and extreme in modern U.S. history, is any different from its predecessors.

There’s nothing to see here, he says, move along.

The Other Coup

But of course, not only are the defects of this court worthy of scrutiny—and indeed call for action from anyone who cares about having a functioning justice system in the U.S.—they need to be seen in a different context than we usually view them. The take-over of the court by extreme right wing justices with an activist, theocratic agenda is not a phenomenon that should only be studied by court watchers. It is part of the American right’s assault on all of the institutions of the U.S. government. Indeed, while the MAGA coup attempt on Capitol Hill failed (for now), the coup succeeded in the Supreme Court. Employing scorched earth tactics, GOP leaders including Trump and Mitch McConnell jammed through a series of appointments to the court that have given the right six seats on the nine justice court and thus a stranglehold on its agenda and decisions.

Keeping Merrick Garland’s nomination to the court from coming up to a vote for a year or jamming through the appointment of Amy Coney Barrett in a matter of days may have just seems like ugly Capitol Hill political gamesmanship at the time. But they were part of a bigger GOP effort that has gone on for many years to win control of key institutions and utilize that control institutionalize their power. Taking over state legislatures and gerrymandering was part of this. Forcing ideologically extreme judges into the system thanks to the behind the scenes ministrations of the Federalist Society was part of this. Using the court to change voting rights law and to give rich donors more clout was a part of this.

With each step the right turned short term victories into long-term perversions of our system of government, time and again stripping away control from the majority and investing it in a minority with a clear agenda: anti-government, anti-social tolerance, pro-Church and pro-Fat Cat.

Behold the Arrogance of Impunity

They have been so successful at gaining control of the court—via a series of lifetime appointments to an institution that, as we have found, answers to no one and does not even operate under minimal ethical guidelines—that the likes of Alito and Thomas are not even pretending to be impartial or even honest any more. As their corruption has been revealed, they have responded, “go away kid, don’t bother me.” They have accepted lavish gifts—in Thomas’ case worth many millions—and said, “What’re you gonna do about it?”

Perhaps even more shocking is the degree to which they have shed all pretense of impartiality. Thomas’ wife helped organize aspects of the January 6th coup, is on the record pleading for the “stop the steal” agenda with senior White House officials. Does Thomas recuse from Trump cases? Heck no. Recusal is for little judges, those who actually are answerable to legislatures or whose critics are actually willing to do more than finger wagging.

Alito, like Thomas, has hobnobbed with Federalist Society big wigs and increasingly made less and less of an effort to hide his biases. It’s not that he did not try to cover up or lie about the flags his family flew in support of coup plotters and the theocratic American right. He did. But once the truth came out in the open he also rejected the idea of recusing himself from Trump or coup related cases. “C’mon take your best shot,” he seems to be saying. Unfortunately, Democrats on Capitol Hill, limited their responses to taking to their fainting couches and calling for hearings that the court will never cooperate with.

Then, in the Rolling Stone story cited above, Alito displays a willingness to once again let his extremist freak flag fly. He accepts the argument posed by the undercover journalist, documentary filmmaker Lauren Windsor, that America is deeply divided and that the result will be a conflict only one side or the other can win. He goes further saying that America needs a return to “godliness.” When the same journalist spoke to Alito’s wife, she went even further, saying that in response to looking at pride flags flying in her neighborhood, she would like to hoist a “Sacred Heart of Jesus” flag. She then observed she would like to make her own flag—she seems to have a bit of thing for flags—which would feature yellow and orange flames and feature the Italian word “Vergogna”—a word she then proceeds to spell out for Windsor.

Vergogna means shame.

A Line Has Been Crossed

I’ve met and spoken with perhaps eight or ten Supreme Court justices in my life. They have represented a range of views from Scalia on the right to Ruth Bader Ginsburg on the left. I have even had extended conversations with a few of them. Candidly, I felt privileged to have the experiences. These were people of great intellectual accomplishment and public servants who were really committed, it seemed to me, to see justice done. That doesn’t mean I agreed with them. It just meant that they seemed sincere and, to a degree, humbled by the positions they held.

What set them apart from the Alitos and the Thomases and even from Roberts, is the degree to which they seemed to genuinely revere the institution in which they served. I have seen multiple instances in which appearances mattered to such a degree that you would see them avoid certain conversations in public. In one case, I saw a justice get up and leave the room when a conversation among a small group of friends turned political.

Imagine that. Appearances mattered. Decorum mattered. The institution was greater than personal beliefs or political agendas.

It’s not that the court has ever been perfect. Indeed, its history is one in which big errors are common. We all studied the Dred Scott case in school. But what we are seeing now is different. Legally, fundamental doctrines like stare decisis (that decisions of the court should be grounded in precedent) are out the window. In the Dobbs decision, the court just stitched together a crazy quilt of nonsense and irrelevant cases, some from ancient history, to get where they wanted to go. To give credence to Trump’s argument for immunity required similar legal contortionism.

Further, the recent series of incidents with Alito and Thomas (plus Roberts covering for them) show that they are so confident in their power, so invested with a sense of complete impunity, that they hardly need to rule that Trump is above the law. They’re already there. They’ve already established that power matters more than justice in their world and that they are going to use that power to advance their personal ideological views the law or U.S. public opinion or our national interests be damned.

I’m ready to start a Go Fund Me for Martha Alito. Let’s make her that Vergogna flag. It should fly over the Alito House, the Thomas House and the right wing majority on the Roberts Court. “Shame” should be emblazoned on their banner. It will be, after all, their historical legacy.