Alito’s chattiness is damning

31 July 2023

Lately, Samuel Alito has been very chatty. Since writing the decision that overturned Roe, thus immiserating the social standing of half the country, the Supreme Court justice has written one opinion piece for the Wall Street Journal and, more recently, sat down for two four-hour interviews with the newspaper. The man has a lot to say! That might be fine, except that every word Alito speaks already affects everyone. That, however, isn’t enough.

His first opinion piece was, as Ruth Marcus wrote, “a preemptive strike against ProPublica.” Alito authored “an op-ed prebuttal for the Journal when ProPublica did the professional, responsible thing and asked questions before publishing its latest blockbuster, about Alito’s Alaskan fishing trip with hedge fund tycoon Paul Singer, who had business before the court.”

In an interview, he defended against reforms that are likely coming soon from the Congress to address corruption by himself and the other members of the court’s rightwing supermajority. He’s getting ahead of the story, as they say in politics, by saying that he and the other high priests of the law are, like his pope, infallible. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period,” he actually said.

As I said, Justice Alito has been very chatty lately, and with that have come consequences that I’m pretty sure he doesn’t want. Let me put it this way: My mom used to say that “it’s better to remain silent and be thought a fool than to speak and to remove all doubt.” Well, Alito is removing all doubt.

I mean, he’s obviously a smart man. I don’t question his intelligence. What I question is his wisdom. Saying that the Congress can’t touch the court and that the court, by implication, is untouchable by any democratic means might be the dumbest thing I have heard a justice say. And I don’t mean arrogant. I mean dumb. In that one sentence, he gave the game away.

First, by saying that the Congress shouldn’t bother trying to reform the court, because it can’t, he’s telling us just how worried he is about the Congress trying to reform the court. A wise justice corrupted by power would remain silent! But the man can’t help himself, can he? In the process, he’s exposing his fears, which in turn could give the Congress more motivation to act.

Second, by saying the Congress shouldn’t bother trying to reform the court, because it can’t, he’s telling us that – well, he’s telling us that you don’t need to be a genius to be on the Supreme Court. Anyone with any sense can tell you that a democracy with nine infallible priests of the law who operate beyond the reach of democratic politics is no democracy. It’s something else.

“Taken literally, that statement is nonsense,” Ilya Somin of the Antonin Scalia Law School at George Mason University, wrote on the Volokh Conspiracy blog, with respect to “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.” “Congress clearly does have power to regulate the court in a variety of ways.”

“Congress has power to set the size of the court, establish its pay, determine its staff and budget, and, with some exceptions, set out the scope of its jurisdiction to decide cases,” Ruth Marcus wrote. (She quoted Somin.) “Congress literally wrote the oath that justices take. The start of the Supreme Court term on the first Monday in October? It’s a law.”

And, as Marcus wrote, the Congress can set ethics rules. I’d add that it can do this, because it is the first among equal branches of government. It’s the first among equal branches, because America is a democracy. The Congress represents the people. The people are the ultimate sovereign. A wise justice corrupted by power would remain silent! A foolish one opens his mouth to say that the people can’t democratically meddle with the third branch.

Alito’s chattiness is damning.

The more he talks, the more his words will be used against him.

A principled man who has done nothing wrong would allow democratic politics to play out and accept whatever consequences were forthcoming. A man corrupted by power, and who is all of a sudden getting super-talky, is someone who’s getting nervous about the good times coming to an end.

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