Tag Archives: Samuel Alito

The Court’s Selective Originalism

Our current Supreme Court is dominated by regressive Justices who insist–as did the late Antonin Scalia–that they reach their conclusions by being “originalists.” Their definition of originalism differs rather substantially from mine–I’m firmly of the conviction that an authentic originalism requires fidelity to the values embraced by the Founders, while they insist that an originalist is bound by the constitutional text as it was understood at the time.

Permit me an example of why this is horse-pucky.

I used to ask my students what James Madison thought about porn on the internet. Obviously, Madison could not have conceived of the Internet–but he had very explicit beliefs about the value of free speech and the need to prevent government censorship. The current majority’s crabbed and dishonest “originalism”–if consistently pursued– would reserve free expression to communication methods in place during Madison’s time. A workable originalism protects speech from government censorship irrespective of the method of its transmission.

Of course, the majority doesn’t apply its version consistently, because it would be unworkable. Instead–as legal scholars have pointed out–they are selective in their application. (At least so far, they haven’t allowed government to censor radio, television, movies, and the internet–none of which the Founders could have envisioned.)

I thought about that very telling selectivity when I read an essay by Thom Hartmann about theocracy and the Dark Ages. I encourage you to read it in its entirety, but the part that struck me–and reminded me of the selectivity of Justices like Scalia, Thomas and especially Alito– were the sections detailing the Founders’ approach to Separation of Church and State.

Hartmann began by quoting extensively from John Adams. Adams was a practicing Christian, but was wary–to say the least– of government efforts to compel religiosity. Among the Adams quotes shared by Hartman was the following:

“Since the promulgation of Christianity, the two greatest systems of tyranny that have sprung from this original, are the canon and the feudal law. The desire of dominion, that great principle by which we have attempted to account for so much good and so much evil, is, when properly restrained, a very useful and noble movement in the human mind.

“But when such restraints are taken off, it becomes an encroaching, grasping, restless, and ungovernable power. Numberless have been the systems of iniquity contrived by the great for the gratification of this passion in themselves; but in none of them were they ever more successful than in the invention and establishment of the canon and the feudal law.”

Hartmann also quoted Jefferson, who wrote in his Notes on the State of Virginia:

“Reason and free enquiry are the only effectual agents against error. … Had not free enquiry been indulged, at the æra of the reformation, the corruptions of Christianity could not have been purged away.”

And he shared an often-cited Jefferson line: 

“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

Adams and Jefferson weren’t the only Founders who believed in separating church from state. As Hartmann notes,

George Washington refused to declare himself a Christian; Thomas Paine wrote an entire book embracing atheism; Ben Franklin famously fled Massachusetts as a teenager to escape the censorship and threats of imprisonment by religious leaders.

The essay points out that today’s White Christian Nationalist movement is both ahistoric and anti-American–a conclusion with which credible scholars entirely agree.

So here’s my question, aimed especially at Justice Alito (Thomas is simply corrupt, but Alito seems to be a true theocrat.) If you are really an originalist, bound by that doctrine to decide constitutional debates as the Founders would have understood them, why are you ignoring both the Constitutional text and the substantial contemporaneous evidence of their belief in the importance of Separation of Church and State?  

Hartmann’s essay focused on the Dark Ages, a thousand-year period introduced and maintained by virtue of the close alliance of church and government. He ends with a question:

Will we go down a nationalist religious road similar to that now being followed by Modi in India and Netanyahu in Israel? Could we end up as bad as Iran, Afghanistan, or 17th century New England? Will Republicans trigger a new Dark Age?

Or will we re-embrace the Renaissance and Enlightenment values and ideals of the Founders of this nation and hold to a secular democratic republic?

If the pseudo-originalists on today’s Court prevail, we won’t like the answer to that question.

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And The Evidence Mounts….

Yesterday, I posted about the 2018 book How Democracies Die. My “take-aways” were twofold: first, the authors located the source of today’s efforts to install an autocracy in the racism that has long been identified as America’s “original sin,” and second, they identified warning signs of institutional and normative breakdown.

Several things have changed since 2018, of course, and some of those changes have been positive. Biden’s victory in 2020–a resounding popular victory despite the desperate efforts of Trump and MAGA voters to de-legitimize it–and the failure of the much-anticipated “Red wave” in 2022 come immediately to mind. But other signs are more ominous–especially the pathetic acquiescence of elected Republicans to Trump’s and the far-Right’s increasingly public racism, and the unprecedented and blatantly-partisan behavior of members of the judiciary.

Two examples from just the past week.

The Governor of Texas, Greg Abbott, pardoned Daniel Perry, who had been convicted of murder for fatally shooting a demonstrator during a Black Lives Matter protest. Perry had been sentenced to 25 years in prison for killing Garrett Foster in downtown Austin in July 2020. Abbott’s hand-picked Board of Pardons and Paroles voted unanimously in favor of the pardon.

Witnesses at the trial had testified that the man Perry shot had never raised his weapon, and according to court records, in the weeks leading up to the protests, Perry had sent multiple racist messages about protesters, shared white supremacist memes and talked about how he “might have to kill a few people” who were demonstrating. In one, he compared the Black Lives Matter movement to “a zoo full of monkeys that are freaking out flinging their shit.”

Abbot’s pardon sends a strong–and horrifying–message: in Texas, elected officials will protect racists. Even murderous ones.

Then there’s the even more horrifying disclosure that–in the wake of the January 6th insurrection– a “Stop the Steal” symbol flew on Justice Samuel Alito’s lawn.

You need not be a lawyer to share Robert Hubbell’s reaction:

As a Supreme Court justice, Alito has been unapologetic in his efforts to defend Trump’s lawlessness. He has risen to Trump’s defense with gleeful spite and unveiled resentment against those seeking to hold Trump accountable under the Constitution.

On Thursday, the New York Times revealed that Alito’s home displayed an upside-down US flag during the fraught days after the January 6 insurrection. At the time, flying the US flag upside down was a symbol calling to “Stop the Steal” of the 2020 election from Trump. It was a call to insurrection—proudly displayed by a US Supreme Court justice sworn to defend and protect the Constitution. See New York Times, At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display.

In response to an inquiry from the Times, Alito said, I had no involvement whatsoever in the flying of the flag.
Notably, Alito did not deny the veracity of the photograph of the flag flying upside down on his lawn. He did not deny the symbolism of the upside-down flag. He did not deny that he was aware of its continued presence in front of his house. Instead, he blamed his wife, whom he claimed flew the “Stop the Steal” banner in response to anti-Trump signs in the neighborhood.

Alito’s response to the Times is a lie. He owns the flag. He owns the flagpole. He owns the property on which the flag was displayed. He permitted it to remain on display on his property. He, therefore, did have “involvement” in “flying the flag.” It does not matter that it was his wife who physically raised the “Stop the Steal” banner on the flagpole. Alito’s hair-splitting denial is misleading and incomplete—and therefore false.

As Hubbell notes, this leaves us with a second Supreme Court Justice whose spouse actively supported an effort to prevent the peaceful transfer of power.

Those justices—Alito and Thomas—are currently considering Trump’s presidential immunity defense to the indictment alleging that Trump attempted to subvert the election. Under any reasonable reading of Code of Conduct that applies to Supreme Court justices, Alito and Thomas should have recused themselves long ago (under Canons 2 and 3).

In a very real sense, Americans are still fighting the Civil War. Today’s Confederates are more geographically scattered, and the incidents of bloodshed and violence are being perpetrated by individual MAGA racists rather than by an organized Rebel army, but the White Supremacy beliefs motivating the combatants haven’t changed. More worrisome still, years of partisan efforts to subvert racial and religious equality and the rule of law have led to utterly scandalous, unethical, and judicially-unforgivable behaviors by two Justices of the highest court in the land–a profoundly dangerous institutional breakdown.

This is how democracies die.

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