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Samuel Alito and Clarence Thomas are deeply unethical. Their conflicts-of-interest are brazen and shameless, they are openly corrupt, and their general and open hostility toward those they believe are their political opponents is especially jarring given how they’re not supposed to engage in such behavior as sitting justices.
Mr. Alito and Mr. Thomas do not belong on any federal bench, of course, let alone in seats on the Supreme Court. I feel every reasonable adult considering the evidence in good faith agrees.
That’s all well and good to acknowledge, and also: the harsh and sad truth that many folks need to hear is that Samuel Alito and Clarence Thomas aren’t going anywhere, unless by their own volition or the unyielding authority of mortality’s sweet embrace.
More to the point: Mr. Alito and Mr. Thomas will not be removed from the Supreme Court. That is never going to happen. Ever. So long as they wish to be in those seats and their bodies don’t fail them, both will remain sitting Associate Justices of the Supreme Court.
I feel the need to point this out because I see a lot of well-meaning folks getting angry with Senate Majority Leader Chuck Schumer and Senate Judiciary Chairman Dick Durbin and President Biden and whomever the hell else, as though of any these people have a magic wand that can spirit Mr. Alito and Mr. Thomas out of power.
So, let’s review: by authority of the Constitution, federal judges can only be removed from the bench—that includes Supreme Court justices—by a two-thirds conviction of the U.S. Senate following impeachment by the U.S. House.
So, for example, if Mr. Alito were to be impeached by the House, as damning as that may be, and even if a whopping 66 senators vote to convict after trial proceedings, he still would not be removed because it takes 67 senators (two-thirds of the body) to reach a conviction.
This is not without precedent regarding accountability of federal judges, 15 of whom have been impeached in our country’s history, eight of them convicted in the Senate, on charges ranging from abuse of power to soliciting bribes to intoxication while presiding.
That exclusive club includes Justice Samuel Chase, the only member of the Supreme Court to be impeached, in a highly partisan war between the Federalists and Democratic-Republicans (the two major parties at the time). He was acquitted on all charges by the Senate.
But folks, need I point out the obvious? We don’t live in a rational time. We don’t live in a good faith political environment. Mr. Alito would have to commit crimes so visceral—and the evidence brought against him would have to be so overwhelming—that numerous Republican senators would have no choice but to vote for a conviction.
This is the same bunch that let Trump get away with blatant corruption in two separate impeachment trials. Please, raise your hand if you think the Senate would convict Mr. Alito short of him murdering someone and bragging about it on national television.
I know it’s frustrating. I know it can feel demoralizing. But I worry far more about the exacerbation of folks’ exhaustion if they’re led to believe Mr. Alito might be removed from the bench, only to realize, down the road, he will never be. It’s not gonna happen. Ever.
And before y’all mention it, yes, I read Congressman Raskin’s elegantly penned op-ed in The Washington Post yesterday, in which he argues that Mr. Alito and Mr. Thomas can be forced to recuse themselves from the Jan. 6th case.
(Quick note for those not-in-the-know: “recusal” means a federal judge acknowledges a conflict-of-interest they may hold in a pending case and removes themselves from the process in the interest of fairness. This does not mean they are wholly removed from the bench. Two very different things.)
Mr. Raskin has a brilliant mind, and I am regularly in awe of it. But there’s one key problem with his argument: outside of Congress (see above), the only folks with an enforcement mechanism on recusal are Mr. Alito’s and Mr. Thomas’ fellow justices.
He’s absolutely right on the steps outlined: the Justice Department could petition the other seven justices to enforce recusal, and those justices have the legal authority to do so.
I would even encourage the Justice Department to do exactly that, in order to further draw attention to all the ways in which the Supreme Court is failing the American people. I’m all for that as a tactic.
But I want to be very clear: the conservatives on the Supreme Court will never support recusal enforcement. They cannot be shamed into it. Mr. Raskin is a truly wonderful man and a great patriot and a brilliant public servant, but he, too, knows—deep down—that will never happen.
I believe Mr. Raskin’s op-ed does have utility in an important way: bringing more attention to the blatant corruption of Mr. Alito and Mr. Thomas, and that is an effort worth making. But I don’t want folks to believe recusal will ever happen. It will not.
Okay, so, that’s the bad news: Samuel Alito and Clarence Thomas will never be removed from the bench, and they will never be recused from cases before the Supreme Court that have high stakes for our democracy.
Here’s the good news for those with the guts to see it: we can focus all our energy on reelecting President Biden and holding the Senate and ensuring another four years of reshaping the federal judiciary, which may even include one or two conservative vacancies on the Supreme Court.
Next year, Mr. Thomas will be 76, and Mr. Alito will be 75. We could very well see them both make the decision to step aside in the next four years due to extraordinary health problems. They could choose to spend their remaining time in retirement.
I’m not trying to be pollyannaish here, I promise. I will certainly concede it’s not likely this will happen. Probably not. But it could happen. By the 2028 election, it’s not out of the realm of possibility that the Supreme Court could slowly shift to a 5-4 majority of reasonable jurists.
And it’s a hell of a lot likelier we’ll see that happen before Mr. Alito and Mr. Thomas recuse themselves from a case, let alone be removed from the bench.
We have a choice in this moment. We can focus on this election, put our hearts and minds into reelecting President Biden and holding the Senate and taking back the House and playing the long game. Or we can get distracted with things that will never happen and put our hard-earned energy into ventures that don’t deserve it.
Let’s criticize the corruption of the Supreme Court and use it as potent messaging on the importance of this election, but let’s also be realistic and understand that we’re in a marathon for democracy, not a sprint.
If we can do that, it’ll be worth it.
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