Sixty More Supremes
SCOTUS Needs Many More Justices, Much Less Respect
“My wife is fond of flying flags,” Supreme Court Justice Samuel Alito writes in his condescending letter responding to Senators Chuck Schumer and Sheldon Whitehouse, in which he treats their request for his recusal in the Trump election cases with the respect he thinks it deserves.
Chris Geidner at
covers the letter and the upshot in his post “Sam Alito believes you — and, perhaps, his colleagues — are stupid.”Unlike Geidner, I don’t have the energy (or, thankfully, the job) of pointing out all the mealy-mouthed excuses Alito makes in pretending that his household’s hoisting insurrectionist flags has no bearing on his or the court’s integrity.
But, after rehearsing all of these excuses (“my wife’s name is on the title; I can’t control her actions,”), etc. He closes his letter with a paragraph of stentorian propriety:
“A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that this event does not meet the applicable standard for recusal. I am therefore duty-bound to reject your recusal request.”
To which the reasonable person replies: “PHHHHTNTPBBBHPTH.” That’s a fart noise, just so we’re clear.
Alito determines what “a person … not motivated by political or ideological considerations or a desire to affect the outcome” of SCOTUS cases would conclude. How would he know? He is not that person, nor is anyone involved in this correspondence. It’s long past time to dispense with the patina of political independence, and both expand the court and treat it with much less respect.
Almost two years ago, after the Court ruled in Dobbs v. Mississippi Women’s Health I tweeted out a sophomoric joke, and then drafted a version of the essay below, which I never sent. But Sam Alito is a Fox News-addled Baby Boomer motivated by political and ideological concerns and by his desires to affect the outcome of Supreme Court Cases. I am therefore duty-bound to send this out now.
The dumb joke I tweeted:
This is what Twitter was for, for many of us: venting about some horrible development through ironic detachment, scatological reference, or sexual innuendo. It’s the level of engagement the Supreme Court of the United States deserves.
Look at these Catholic school brats dissembling through their teeth:
Sure, strictly speaking, there are no lies here. They’re just playing Confirmation Hearing. It’s a game where you get the prize as long as you don’t say anything of substance about any important issue.
I think we should play Confirmation Hearing a lot more. There’s no reason the court can’t be bigger. The President should appoint two justices per week all summer.
There are lots of practical reasons this won’t happen, not least because it’s an election year and the President’s base is filled with liberals who maintain a misplaced respect for our institutions.
But our institutions don’t work and that’s mostly because the two sides are playing by different rules.
Liberals (my side), against all good sense, still place their faith in process and institutional integrity even as those structures insure outsized minoritarian influence — and, unless the chips fall just right, minoritarian rule.
And when the minoritarians are in power, they make structural changes that further subvert those institutions, entrench their preferences and shore up structural advantages.
Of course I’m talking here about the fact that, say, a Los Angeles City Councilor represents about half as many people as a Senator from Wyoming. This accounts for the wide differences in popular opinion — which favors sensible gun control, abortion access, Medicare For All, and a host of other not even all that progressive issues — and … what we get.
The minoritarians have an advantage. They don’t care if government works or not, so there’s no political cost to them.
And please get out of here with the idea that the justices are above politics and interested mainly in originalism, textualism, and “what the words meant when they were written.”
The late Antonin Scalia gave the approach its intellectual veneer but originalism is the naked application of power and policy preferences dressed in scholar’s robes (cf. Clarence Thomas’s notable assertion in his concurring opinion on Dobbs that the precedents in Obergefell and Griswold — which affirmed the rights to same-sex marriage and contraception, respectively — should be revisited; at the same time, he remained silent on Loving v. Virginia, which affirms a right he has actually exercised — to interracial marriage).
What I want my fellow liberals to do is accept that, and ask our elected officials to apply the same approach that the minoritarians have been employing for years.
Please join me in asking President Joseph R. Biden to appoint two Supreme Court Justices a week (on Wednesdays, say? Are Wednesdays good for you?) until September 25, 2024.
When he fails to do that, please at least join me in adopting the following attitude to SCOTUS and its opinions, which is the attitude Alito reserves for everyone except his flag-flying wife:
"But our institutions don’t work and that’s mostly because the two sides are playing by different rules." but why are the two sides playing by different rules ?? wouldn't that be anti-productive ?? and i don't think we'll understand it by dividing into liberal and conservatives either / that's some kind of revolving door that doesn't go anywhere / why does someone choose to identify as 'liberal' or 'conservative' ?? i know this is going down the philosophical rabbit hole and it's not politics anymore but maybe we need to think outside the box and look for some causal clues / the system doesn't work anymore / the SS Republic of America is sinking / we need to adapt / nobody's ready to do that though / your idea of 69 justices is a good one / they could go down on each other / haha / that's my bad joke