The shock of that upside-down flag at Samuel Alito’s house still hasn’t worn off. Hats off to the amazing Jodi Kantor for one of the great political scoops of our time. So seemingly insignificant, in a way; just a silly little symbol. But what a symbol. It says everything about these treacherous, amoral, and arrogant people.
That last adjective is the most important one. The arrogance is bottomless. Why did the Supreme Court justice do this, or allow “Mrs. Alito”—on whom he pinned the blame—to do it? He knew it was petty. And he surely knew that, by conventional ethical standards, it was wrong. But he didn’t care because he knew that he stands beyond punishment for such acts.
Who exists to mete out such censure? No one. I and people like me are writing pieces like this. Others are fulminating on cable news. The New York Times and others write editorials. Who cares? None of it matters to Alito. This is the great advantage of conservatives’ having built their own media infrastructure and their own echo chamber with its own twisted morality (rule number one: If it helps us stay in power, do it; rule number two: If it infuriates the libs, do it over and over). They can tune us out completely. Ditto the polls. They just don’t care.
There is no such thing as shame anymore with people like Alito and fellow Justice Clarence Thomas. Wasn’t it conservatives who used to lecture the rest of us about shame? How the country was better when people—by which they meant certain kinds of people, like unmarried pregnant women—felt shame for their behavior? That’s what William “Black Jack” Bennett used to tell us. Today, if Bennett were to stage a comeback—yep, he’s alive; old enough to be a Rolling Stone or a president—and write The Book of New Conservative Virtues, chapter one should be about how shamelessness is the greatest virtue of all.
But the worst thing isn’t the shamelessness or the arrogance. Not by a long shot. The worst thing is that these people have power. And they want to use it as long as they possibly can, until the last flicker of life wheezes out of them, to remake society after their deeply reactionary convictions.
In this sense, Alito and Thomas are no longer even jurists anymore. Oh, they are, officially. And I’m sure on certain days, that’s how they think of themselves—as men of the law.
But that isn’t really what they are doing, on a session-to-session basis. They are not, first and foremost, interpreting law. They do that sometimes, on noncontroversial cases, and every once in a great while, one of them throws us a surprise, as Thomas did just recently in upholding the funding mechanism for the Consumer Financial Protection Bureau.
But mostly what they’re doing from the bench, especially on the big cases, is right-wing judicial activism. This is because they see themselves as vanguardists in a movement—specifically, a Christian nationalist movement to overthrow the existing secular order and impose a quasi-theocracy where people are free to discriminate against others, provided they’re doing so on the basis of their “religious beliefs.” And where, by the way, the federal government is so shriveled and neutered and underfunded that it can’t enforce anti-discrimination anyway.
Alito and Thomas have told and shown us time and time again that this is the America they want. Alito’s Dobbs opinion cites common law going back to the thirteenth century characterizing abortion as a crime, as if something that was commonly believed 700 years ago should influence us today. Thomas’s infamous Dobbs concurrence warned us that Dobbs was just the beginning, and the court is coming for same-sex marriage and even contraceptive rights.
This is not calling balls and strikes, people. This is monomaniacal, steroidal judicial activism. Alito and his cohort are not on the court to interpret law. They are on the court to change society. They are part of a movement dedicated to same. This is what makes them Leninists—vanguard members of a severe and narrow ideological movement that seeks total power for the purpose of fundamentally reordering society. Lenin used cruder methods, early twentieth-century tsarist Russia being altogether more welcoming of crude and violent methods than twenty-first century democratic America. But the impulses are identical.
Could one have said the same of the court’s liberals of an earlier time—William Brennan, Harry Blackmun, Thurgood Marshall? Did they not “change society” in fundamental ways? Yes, they did. But they were not part of a severe and narrow ideological movement. And they didn’t impose their ideology on a skeptical nation in a series of hugely contentious 5–4 (now 6–3, alas) votes. Roe v. Wade, for example, was 7–2, with more-conservative-than-not Chief Justice Warren Burger joining the majority. Loving v. Virginia, which legalized interracial marriage, was unanimous. And in those days, of course, the court enjoyed broad public respect.
Maybe that was so, in part, because those justices cared what people thought about them and knew what was and was not appropriate for a person who wore a judicial robe to do. You think Thurgood Marshall had an Impeach Nixon sign on his lawn in 1974? I don’t know for sure, of course, but I’d bet my mortgage that he would have had a fit if “Mrs. Marshall” had suggested such, no matter how much taunting she’d had to endure from a pro-Nixon neighbor. And that’s the difference.
Well, it’s one of the differences. The other difference is that Thurgood Marshall was a decent, humble human being who wanted to help people who’d faced discrimination in this country, while Alito and Thomas are not. Their arrogance borders on sinful, and their morality is as upside-down as their flag.
