ALITO? THERE IS ONLY ONE ANSWER

In my blog of July 15, 2018, I had this to say about Justice Samuel Alito:

“When George Bush nominated Circuit Judge Alito to replace Sandra Day O'Connor, Alito's former clerks sprang into action. Two themes were pervasive: i) the clerks said they were "politically diverse, Democrats and Republicans," and ii) the clerks assured the Senate that their judge had "always applied precedent faithfully," "never pre-judged a case or ruled based on political ideology,'' "always applied "controlling legal authority to the facts of each case after full consideration of all relevant legal arguments,"  and "where Congress has spoken, he rejected efforts to advance policy goals not adopted by Congress.

So what did Supreme Court Justice Alito do once he was confirmed? A small sample: He ignored precedent and voted to place restrictions on abortion, he voted to overturn a Supreme Court precedent that protected the finances of municipal unions, he voted to strike down Congress's clear provisions providing employees with contraception coverage under the Affordable Care Act, and he voted in favor of effectively repealing sections of the Voting Rights Act passed by Congress because he did not think they were any longer necessary.”

I described the most outrageous one on the above list: a case called Gonzales v Carhardt:

“In the year 2000, the Court, by a 5-4 vote, struck down a Nebraska statute that banned an abortion procedure in late stages of pregnancy. The bill's sponsors had given it the provocative title "The "Partial Birth Abortion Act." The statute's terms were absolute, and made no exceptions, even for instances where physicians determined the procedure was necessary to protect the mother's health.

In the year 2003, Congress passed, and Bush II signed, a federal statute that was identical to the unconstitutional Nebraska statute. The federal statute was thereafter ruled unconstitutional by three circuit courts, but when it reached the Supremes, there was a new player on the Court: Justice Sandra Day O'Connor, who voted with the majority six years earlier, had been replaced by Samuel Alito, who, with his four new buddies, employed post-truth sophistry and ruled that the federal statute was constitutional! The Court's reasoning was so blatantly dishonest that Justices Scalia and Thomas, (who nevertheless joined in the result) openly criticized their conservative colleagues for their failure to admit they were upending the six-yr-old precedent.”

Nothing has changed since I wrote that criticism of Justice Alito two years ago. He has continued consistently to vote against freedom of choice, be it concerning reproductive rights or same-sex companionship.  He has voted against contraceptive rights and he has voted to strip some 21 million people of their medical insurance by striking down the Affordable Care Act. He is a prime example of a Justice who, as Professor Fried put it, threatens to “take a wrecking ball to generations of Supreme Court doctrine—and not just in matters of reproductive choice.”

But Mr. Alito is apparently not happy with the power he exercises as a member of the highest court in the land. He has now taken to the hustings and vented his spleen there. In a shocking departure from judicial ethics and practice, Mr. Alito gave a speech the other day to the Federalist Society in which he complained about “unimaginable restrictions on individual liberty.”:

He was outraged the Court refused to strike down state limits on the size of crowds that could gather in houses of worship during the pandemic crisis. In the face of hundreds of thousands of deaths from Covid, he railed against “scientific expertise“ that influenced governors and other executives to impose limits on the size of crowds in shuls and churches. (A new case, raising that precise issue, is currently before the Court!)

And,

He charged that supporters of same-sex marriage are guilty of “censorship” when they criticize arguments to the effect that “marriage is a union between one man and one woman.” 

And,

He railed against a court decision that sustained a  law requiring pharmacies to carry “morning after” pills. He argued they were “abortifacients”. He was wrong.

And,

He sarcastically described New York City’s withdrawal of an ordinance barring interstate transport of licensed handguns, and sharply criticized Senator Whitehouse for saying the matter before the court was so clear in favor of the City that a different result would encourage restructuring of the Court. (The court did vote in favor of the City, and Alito dissented.) 

The New York Times headline was understated:

“In Unusually Political Speech, Alito Says Liberals Pose Threat to Liberties“

So what is to be done? Alito can’t be fired, impeachment is out of the question, and the only realistic remedy is to dilute his influence and counter the current 6-3 conservative majority.

We need to add four or five Justices. 

I am not un-aware that the Biden administration cannot accomplish that as long as the Republicans control the Senate. But there is hope. Right now the Republicans lead the Democrats 50-48, with two seats to be decided in a January 5 run-off election in Georgia. Runoff elections in that state are unique and have produced surprises in the past. 

Will the Biden momentum carry the day? Can the Stacey Abrams organization pull this off?

If the answer to those questions is ”no,” there are still two other possibilities, however slim:

i) one or two Senate Republicans breaking ranks, or

ii) the election of 2022 the Republicans will need to defend 21 seats vs.13 for the Dems, and two Republicans have already announced they will not be running again.

Other than that, I lack ideas of HOW, but I do not lack certainty of WHAT must be accomplished.

A bientot.

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