Samuel Alito and Clarence Thomas need a spanking

Chief Justice John Roberts, this is your moment of consequence. History will either laud you for preserving America’s 221-year arc toward justice, or it will align you and your Court with tyranny.

You may need reminding that the Supreme Court has no army. You have no police; you lack all mechanisms of enforcement. Your authority depends on America’s trust in the rule of law, which you are allowing Justices Samuel Alito and Clarence Thomas to mock.

Having spent nearly 30 years as a federal trial lawyer, under an oath to promote, uphold and defend the Constitution, I feel mocked, as do many of my colleagues. Unlike the partisan zealots on your bench, we took our oaths to heart. Many of us wish we hadn’t.

Alito, Thomas subvert the Constitution

Alito and Thomas, batting for theocracy, have consistently bastardized the Establishment Clause into a tool for inflicting their own religion onto others — exactly the opposite of what Thomas Jefferson counseled.

Men who gave their lives to separate church and state are rolling in their graves at Alito’s Christian Nationalist flag, and Thomas’ voyeuristic obsession with what goes on in other people’s bedrooms.

A vitriolic and aggrieved duo, their dissent in Obergefell painted equality in sepia tones of their own bitter resentment: In their telling, marriage equality would “vilify” Americans who are “unwilling to assent” to the “new orthodoxy” of gays living in dignity.

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Then, feigning originalism in Dobbs, they (and you) vitiated Equal Protection, elevating the legal rights of zygotes over those of living, breathing women, citing 12th century mores when men like Alito burned women like me at the stake. Alito wrote the splotchy, results-driven screed, while Thomas used it to suggest “reconsidering” gay marriage and contraceptives, the pull of other peoples’ bedrooms apparently still intact.

This villainous duo appears restless, itching to do more to subvert the rule of law in former President Donald Trump’s name. They are doing this on the heels of accepting lavish gifts from litigants before the Court, and their own dishonest explanations for why they failed to report them. Their revolting lack of ethics, their partisan partiality and your spineless failure to rein them in, Chief Justice Roberts, suggest that under your watch, the rule of law has become illusory.

Lawlessness in service to the oligarchy

Alito and Thomas monetize their religious fervor with the deep pockets of oligarchs champing at the bit to see Trump eliminate corporate taxes and pesky regulations. Groomed by Big Oil, the NRA and corporate donors, Alito and Thomas believe their benefactors will profit when the rule of law is gone and resources are up for grabs.

While they are correct that oligarchs profit when the rule of law is defeated — it’s why tycoons tend to oppose central governments globally — it seems a refresher in how authoritarianism unfolds is also in order.

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If you allow Alito and Thomas to facilitate a Fourth Reich, as they both appear wont to do, you and the entire judiciary will be rendered powerless in a matter of months, Chief Justice Roberts:. Enablers only think they’ll be able to control their dictators once in power, as the financiers surrounding every criminal despot throughout history have mistakenly believed.

You will rubber stamp what Trump and his corporate backers want, but inevitably, their desires will diverge from your own. At that point you will have no recourse, because there will be no laws except for paper platitudes that serve the dictator’s interests. Ponder what role for the judiciary will remain thereafter.

If not impeachment, recusal

Impartiality is the sine qua non for any jurist, therefore, the privilege of a lifetime appointment requires strict avoidance of even the slightest appearance of partisanship. Flying treasonous flag(s) at your own home(s), and presiding over cases implicating your own wife's treasonous conduct, subvert the very premise.

The Court took only three weeks to support Trump in the Colorado ballot case, determining that “States have no power under the Constitution” to kick insurrectionists off their ballot, — otherwise, “state-by-state chaos” would result. This from the same smug lot that created state-by-state medical chaos under Dobbs that left women bleeding in parking lots.

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Despite your alacrity in the Colorado case, it is taking you months — months — to parse whether a president can assassinate his rivals with immunity from prosecution. Neither of your compromised blackguards, sir, recused themselves from these insurrection cases or the case considering whether the Jan. 6 attacks on the U.S. Capitol amounted to obstruction. No matter how you contort justice to serve Trump before this term ends, your decision(s) will not be respected because of the flagrant partiality of Alito and Thomas.

Last year, you assured the American Law Institute that you were “committed to making certain that we as a court adhere to the highest standards of conduct,” and you said that we lawyers should trust the Court to develop its own Canon of Ethics. But self-policing has proved an epic fail: the Ethics Code you adopted is a toothless joke that said nothing about Alito and Thomas’ malfeasance. They remain unaccountable to anyone but themselves and their benefactors.

Subjecting the highest court to the lowest standards

Federal law on judges’ recusal is clear and unequivocal: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Existing guidelines for Supreme Court staff prohibit all employees from engaging in partisan political activity or any “political activity if the activity could reflect adversely” on the impartiality of the Court.

Remind me: Why, exactly, are justices on the highest court subject to lower standards than their staff members?

Is it, perhaps, because Alito and Thomas’ treasonous conduct, demonstrated corruption, ax-to-grind rulings and contempt for long-established precedent scream partiality from a bullhorn?

Alito’s kingmaker claim in The Wall Street Journal that, “No provision in the Constitution gives (Congress) the authority to regulate the Supreme Court — period,” was embarrassing and absurd.

Congress funds you. Congress has also been regulating the Court, dictating its salaries, dictating its size and legislating statutory jurisdiction from the beginning. It is clear Congress must now assert itself and rein in your venal rogues since you apparently will not. It must rebalance the Court without the current nakedly partisan tilt that has stymied our republic’s ability to function.

After voters speak in November — the ones still allowed to vote, that is — a Democrat-dominated Congress will set term limits, enlarge the court, impose ethics with teeth and investigate these rogues, for starters.

I — and at least half of the federal trial bar — look forward to their official spanking and remind you: Alito and Thomas are not the only ones who can angrily dispense with precedent.

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, The Haake, is free.