Samuel Alito’s Resentment Goes Full Tilt on a Black Day for the Court

On the day Donald Trump took office in January 2017, pondering what he might do to the country’s democratic norms and institutions, I wrote these words: “Trump will destroy them, if keeping Trump on top requires it. Or try to. He might not succeed. And that is where we rest our hope—on conservative judges who will choose our institutions over Trump. Mark my words: It will come to this.”

That hope seemed not misplaced back in 2020 and 2021, when a number of liberal and conservative judges, some of the latter appointed by Trump himself, handed Trump 60 or so legal defeats as he attempted to unlawfully overturn the election results. But after Thursday at the Supreme Court? That hope is dead. The conservative judges, or at least most of them, on the highest court in the land are very clearly choosing Trump over our institutions. And none more belligerently than Samuel Alito.

His line of questioning to Michael Dreeben, the attorney arguing the special counsel’s case, was from some perverse Lewis Carroll universe:

Now if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?

Let’s look to something I’d have thought lawyers and judges took seriously: historical evidence. American democracy has existed for nigh on 250 years, and power has been transferred from a president to his successor a grand total of 40 times (not counting deaths in office). On 11 occasions, a challenger has defeated a sitting incumbent—that is, a situation that creates the potential for some particularly bitter and messy post-election shenanigans.

Now, if Alito’s question really spoke to a malign condition that had hobbled American democracy throughout history and that loomed as a real problem that we had to take very seriously, it would stand to reason that our history suggested that these power transfers had had a wobbly history—that maybe, say, 12 of 40, and four or five of the 11, had been characterized by violence and unusual threats of retribution against the exiting executive.

But what does the record show? It shows, of course, that there is only one case out of the overall 40, and one case out of the more narrowly defined 11, in all of U.S. history where anything abnormal and non-peaceful happened. That, of course, was 2020.

And there was a lot of bad blood in previous transfers of power. You think John Adams loved the idea of handing power to Thomas Jefferson? John Quincy Adams was popping champagne to turn things over to Andrew Jackson? Grover Cleveland and Benjamin Harrison, who traded wins, weren’t bitter in defeat? These people couldn’t stand each other. But they did what custom required—a custom never questioned by anyone until Trump came along.

So in other words: Alito throws all that democratic history out the window and treats Trump as the new normal, assuming that the American future is ineluctably strewn with a series of lawless Trumps. Alas, with respect to the Republican Party, there’s a chance time will prove him right about that (but only a chance; my cynicism about the depths to which this GOP will sink is almost limitless, but even I think that Trump is most likely sui generis in this respect, and that your average Republican, even the neofascist ones like Tom Cotton, should we be cursed with a Cotton presidency someday, would probably yield power peacefully if he lost).

But think about what it says about both where Trump has delivered this country, and about Alito’s assumptions about democracy. On the former point: Have we now reached a place where challenges to election results are going to be the norm? Where an opposition party can be counted on to find some legal technicality on which to prosecute a former president, rather than leaving him or her in peace as we have throughout our history?

This is another twisting of reality. Trump, his defenders would protest, is the one former president who has not been left in peace. Well, that is true, I confess. But maybe there’s a reason for it! Actually, there are two. Trump has not been left in peace because a) it was always obvious he was not retired, and b) he’s the only ex-president who tried to foment a coup against the United States of America and who declassified sensitive national security documents with his beautiful brain.

And on the latter point: When George W. Bush named him to the court in 2005, experts told us—of course—that Alito was conservative, yes, but not an extremist (interestingly, Maryanne Trump Barry, Donald’s sister under whom Alito had worked as a prosecutor, was among those recommending Alito’s nomination). As The New Yorker reported in a 2022 profile, Alito was asked in 2014 to name a character trait that hadn’t served him well. His answer? A tendency to hold his tongue. Well, that problem’s been solved, eh? As writer Margaret Talbot noted of the justice, who ignored Chief Justice John Roberts’s importunings to strike a balance in the Dobbs decision, which he wrote: “He’s holding his tongue no longer. Indeed, Alito now seems to be saying whatever he wants in public, often with a snide pugnaciousness that suggests his past decorum was suppressing considerable resentment.”

And this week, he told us, in essence, that in his view democracy depends on allowing presidents to commit federal crimes, because if ex-presidents were to be prosecuted for such things, the United States would become a banana republic. That’s a Supreme Court justice saying that. And while Neil Gorsuch, Brett Kavanaugh, and even Clarence Thomas didn’t go that far Thursday, it was obvious that the court’s conservatives are maneuvering to make sure that the insurrection trial doesn’t see the light of day before the election—in other words, that a sitting president who very clearly wanted Congress to overturn a constitutionally certified election result (about this there is zero dispute) should pay no price for those actions.

When I wrote seven years ago that we rested our hope on conservative judges who will choose our institutions over Trump, trust me, I wasn’t saying I was confident that they would. I was terrified that that day would eventually come. It came yesterday. The conservative jurists chose Trump. It will stand as one of the blackest days in Supreme Court history.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Surprised by Bill Barr? Don’t be. Oh, yes, it’s shocking that he said on Fox News on Wednesday night that if push comes to shove, he’ll be voting for what he euphemistically referred to as “the Republican ticket.” I’m not denying that it is. The frequency and ferocity with which Barr has attacked Donald Trump—a “consummate narcissist” whose second term would be “chaos” and a “horror show”—has led many people to believe that there was no way on God’s earth he’d endorse Trump.

Barr hates disorder and all the rest of it. But he hates something else more: liberalism. And when I heard the endorsement news Thursday morning, my mind raced back to October 2019, and a speech Barr gave at Notre Dame University on government, religion, and the perceived assault thereupon. It was shocking to me at the time—as extreme (though evidently quite honest) a profession of fears and lamentations about modern secular society as you’re likely to hear at an Opus Dei convention, let alone from a sitting U.S. attorney general.

The speech’s, and the man’s, core philosophy were laid out in these sentences:

No society can exist without some means for restraining individual rapacity.

But, if you rely on the coercive power of government to impose restraints, this will inevitably lead to a government that is too controlling, and you will end up with no liberty, just tyranny.

On the other hand, unless you have some effective restraint, you end up with something equally dangerous—licentiousness—the unbridled pursuit of personal appetites at the expense of the common good. This is just another form of tyranny—where the individual is enslaved by his appetites, and the possibility of any healthy community life crumbles.

Barr reaches into his hat to grab a few statistics that allegedly make his point about the sewer into which we have descended. First up, out-of-wedlock births, which have indeed gone up since the 1960s from under 10 percent to around 40 percent. Is the main culprit here that society has lost its religious moorings? Some would put that spin on it, sure.

But specifically, social science seems to have settled on these explanations: wider availability of birth control and abortion (things that Barr laments but are available in just about every developed nation in the world) and the ending, starting in the 1970s, of shotgun marriages. Barr surely thinks this an evil. I would imagine a lot of Americans consider it not a bad thing at all that two immature and incompatible 19-year-olds aren’t forced to marry out of a social convention that traps them in a probably unhappy marriage where the wife may end up the victim of some kind of abuse.

He also cites “record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic.” Again, all true. But the society for which he pines didn’t even measure many of these things and locked mentally ill people away in facilities where we wouldn’t put dogs today. And is the answer to these ills greater piety, or maybe more opportunity in the places that forge all these alienated young men?

It was a very revealing and, as I say, honest speech. He regrets pretty much everything that has happened in America since Elvis. He uses the phrase “moral chaos” twice. And he clearly believes we are in an age of secular tyranny.

So you see, Barr is against Trump, but not in the same way that you and I are. He eventually took a stand against Trump, but let’s recall that it did take him a long time. It wasn’t until Trump’s election denialism after the 2020 election that it all became too much for Barr to swallow. Until then, he was with Trump all the way: through the Muslim ban, through the family separation policies, through the Putin love, through the climate denialism, through the various expressions of racism, through the relentless dividing of the country into an Us and a Them, through the reactionary response to George Floyd’s killing, through the famous walk across Lafayette Park to use a Bible as a prop for the cameras, in which Barr, I remind you, was a happy participant—through every bit of it.

But he objected when Trump tried to overthrow democracy. And good on him for doing so. His was a necessary voice at a crucial, brittle time.

But now we see the real nature of Barr’s Trump opposition. Many conservatives have beheld Trump, contemplated how the GOP could have come to this, and become pretty different people than they used to be—Stuart Stevens, Nicolle Wallace, Jennifer Rubin, many others. That the party and the movement of which they were once proud members was so easily captured by Trump made them see the hollow core of its belief system, and they took on a new belief system instead.

Barr has had no such revelation. Trump the election denier was a danger to the republic. Everything else, though, was jake.

So let’s not kid ourselves. There are a lot of Barr Republicans out there, and it’s clear how they’re going to vote. “A continuation of the Biden administration,” Barr said on Fox, “would be national suicide.” The tyranny of licentiousness. He laid it all out for us back in South Bend.

It’s been pathetic over these recent years to watch people impute certain skills to Donald Trump. Oh, he’s very smart politically. He’s charismatic. It’s all nonsense. It’s political commentators trying to assess him in normal political terms, which only ends up presenting him as a normal politician, which he decidedly is not.

He isn’t smart. In fact, about politics, he’s quite dumb. He has precisely one skill: He knows how to sniff out people’s worst qualities—weakness, envy, anger—and bring them to the fore. That’s it. I’ll grant that this skill got him elected president once and may again. But that doesn’t make it admirable, and it doesn’t mean we should ascribe to him qualities he doesn’t remotely have.

He proved again this week how dumb he is about politics with his new abortion rights position. Earlier this week, I published a column based on the assumption that he was going to back a national 15-week ban. I wrote it on Sunday. It posted Monday at 6 a.m. Then, at around 7:20 a.m., he released his video that made my column moot: no 15-week ban from Trump, but an announcement that it should be up to the states.

Backing a 15-week ban would have been smart politics. He could have sold that as a “moderate” position, even though it isn’t. But fifteen weeks polls well. A February survey showed 48 percent of people backing a 16-week ban, with only 36 percent opposed. And more generally, of course, about two-thirds of Americans in poll after poll say abortion should be generally available with some restrictions.

The embrace of a 15- or 16-week ban would have left plenty of space between Trump and his party’s anti-abortion extremists. It would have enabled him to say, when some deep-red state passed some draconian ban, “No, I don’t agree with that at all; here’s my position, 15 weeks.”

But now? I remember thinking Monday morning that hypothetically, his new “states’ rights” position meant that any extremist position adopted by any state could now be hung around his neck.

The gods sure have a sense of drama because barely 24 hours passed before we went from hypothetical to all too real, when the Arizona state Supreme Court turned the clock back to General Sherman’s march to Atlanta. The decision, reinstating a near-total abortion ban passed in 1864, nearly a half-century before Arizona became a state, was politically shocking and morally repulsive to millions of Americans and Arizonans.

A Trump who’d come out for a 15-week ban could have credibly distanced himself from the decision. Everyone would have bought it. But a Trump who says, as he did on Monday, let’s let the states decide it, owns what the Arizona court did. He later tried to insist, in speaking to reporters Wednesday on the Atlanta tarmac, that he found the position too extreme. But he had just said two days before that states should set their own laws.

So he’s going to get absolutely pounded on this, and deservedly so. Vice President Kamala Harris is headed to Arizona today for a campaign event. According to Playbook, here’s what she is expected to say: “We all must understand who is to blame. It is the former president, Donald Trump. It is Donald Trump who, during his campaign in 2016, said women should be punished for seeking an abortion.”

Boom. Trump just made a huge target of himself—especially with that part of the video where he bragged about putting the justices on the Supreme Court who overturned Roe.

With his position, Trump has tacitly endorsed every severe anti-abortion law in the country. Fourteen states have made abortion illegal since the Dobbs decision. Trump owns every one of those laws. Suppose between now and November, a doctor in Texas is prosecuted for having performed an abortion—a felony punishable by up to life in prison. That will be Trump’s creation every bit as much as the prosecutor who brought the case.

And paradoxically, Trump also owns the positions of the 10 or so states that have liberalized their positions since Dobbs. Some states have enshrined reproductive freedom in their state constitutions. Trump owns that now too.

His pathetic tarmac performance this week showed that he barely knows what he’s talking about. My guess is that the position he took came from two imperatives. One, he heard from abortion rights foes in the GOP and the evangelical world that a 15-week ban was squishy and RINO-ish. Two, someone told him to say “states’ rights” because the phrase lands gently on the conservative ear, and a substanceless person like Trump just thinks that saying a phrase takes care of everything.

He is going to get slaughtered on this issue because of this new position. He says he won’t sign a federal ban. Fine. But that’s not much comfort to the large majorities who want reasonable abortion laws. And there are all those film clips of him bragging about ending Roe. And he’s a liar, so his word is as dependable as a share of Truth Social stock. He has spent his life contradicting himself, saying one thing Tuesday and the other thing Wednesday, and denying he ever said things he said a hundred times. But he’ll learn this year that people have memories.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Finally, the Biden administration appears to be starting to get serious with Benjamin Netanyahu. The president’s 30-minute phone call with the prime minister on Thursday was tense. The same day, Secretary of State Antony Blinken said with respect to Israel’s Gaza actions: “If we don’t see the changes that we need to see, there’ll be changes in our own policy.”

It’s sad that it takes the tragic killing of seven workers for the great global humanitarian José Andrés, as opposed to the piles upon piles of dead Palestinian babies, to spur this change. And, of course, it’s not even really a change yet. It’s a threat of a change down the road if certain behaviors continue. As has been widely noted, on the same day the World Central Kitchen workers were killed by the Israel Defense Forces, the Biden administration approved sending more than 2,000 additional bombs to Israel. But this new tone from the White House is already yielding some results: Israel took immediate steps to increase the flow of aid to Gaza.

The invasion of Gaza is first and foremost a moral calamity. Alongside the wanton death, there is the imminence of massive famine (well, it was declared “imminent” in a March 18 report; it may be happening right now). A recent U.N. report calculated that the destruction of Gaza has been so severe that it will be—get this—2092 before Gaza is returned to its 2022 GDP levels.

But it is also a potential political calamity for Joe Biden. If this war is still happening in October, he will lose the election. Democrats right now very strongly back a cease-fire. In a March 27 poll, both Democrats and independents disapproved of Israel’s actions; just 18 percent of Democrats and 29 percent of independents approve of how Israel is prosecuting the war.

Biden has stuck with Israel, and with Netanyahu, through all this. Partly this is sincere, driven by a combination of horror at Hamas’s savage attacks last October and views on Zionism formed decades ago when Israel was a liberal democracy surrounded by hostile, mostly illiberal neighbors.

But it’s probably part political calculation too, based on another reflex that goes back many decades in Washington: that to oppose an Israeli government’s actions is to risk being tagged as “anti-Israel” by the American Israel Public Affairs Committee and thereby to risk losing Jewish votes.

That may still be true. AIPAC is still very powerful. But there are also a lot of reasons to think that the politics of this situation among Democrats and Democratic-leaning independents have changed dramatically in the last decade, especially among young people. And between 2020 and 2024 alone, eight million new voters are aging into the electorate.

But this isn’t just about people’s views on Israel. It’s about their views of Biden. He risks being seen here as not his own man. An old Bill Clinton quote has been kicking around in the media in recent weeks: After his first meeting in 1996 with an arrogant Netanyahu, Clinton asked his aides, “Who’s the fucking superpower here?”

Netanyahu has only grown more arrogant over the years, which is astonishing. Consider: He’s extremely unpopular in Israel. He’s running a hard-right government that was the target of massive demonstrations since the time it was formed. He’s holding onto his office—and thus prolonging the war—to stay out of jail. His government and military let October 7 unfold for hours with no response. Beyond that, he’s been fine with Hamas running Gaza and letting Qatar finance that for years.

And on top of all that, between now and November, he’s going to be playing a game of chicken with Biden. Cut me off, he’ll taunt, and I’ll be more open about my presidential preference (which, obviously, is Donald Trump).

Biden needs to show Netanyahu, to go back to Clinton’s question, who the superpower is here. It will be risky, sure. But I think at this point the greater risk is in the president of the United States looking like the prime minister of a country of fewer than 10 million people can push him around.

Presidents have stood up to Israeli prime ministers before. It’s not like it’s some outlandish, radical idea. As I write these words Friday morning, I just saw former TNR editor Peter Beinart on Morning Joe pointing out that Dwight Eisenhower, Gerald Ford, Jimmy Carter, Ronald Reagan, and George H.W. Bush all attached conditions to aid to Israel when they felt Israel wasn’t acting in America’s interests—and that it usually worked.

In that last case, it was 1991 when Bush Sr. and his secretary of state, James Baker, held up $10 billion in aid that right-wing Prime Minister Yitzhak Shamir wanted to use for resettlement of Soviet Jews in the occupied territories. Bush and Baker said no. Things got intense. One Israeli Cabinet minister called Bush a “liar” and even an “antisemite.” But Shamir backed down. (Yes, Bush lost the next election, but it wasn’t remotely because of Israel.)

People are questioning Biden’s ability to lead at his age. He may lose some Jewish votes in standing up to Netanyahu—although it’s hard to see a state where any such losses would make a difference in Electoral College terms (Biden is not going to lose New York or California, and no, despite this week’s little hypelet, he’s not winning Florida). But if he doesn’t draw a line, and this war is still happening and the United States is still seen as complicit in all this come the fall, he’ll likely lose a lot more.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

The standard commentary on Donald Trump’s “God Bless the USA Bible” is that while of course it’s cynical and twisted and borderline sacrilegious, there’s also no doubt that his people are going to buy it by the carload, because these people would buy a bag of Trump Dogshit from the guy (“from the bowels of the best dogs, everybody says so”). Some people are just that, well, let us say easily taken in.

Trump’s dark penchant for hucksterism is endless, and P.T. Barnum’s dictum is as true today as it was when he said it. You could take slips of paper on which you write the names of 25 things these Americans like, pull out three or four, conjure up some physical manifestation of it, and Trump would sell it: NASCAR-Branson’s Famous Baldknobbers Beer, in limited-edition cans that show Trump as Rambo.

It’s endless. Or is it? Trump’s fundraising has taken a nosedive. His small-donor numbers are below where they once were. NBC News recently reported that donations to Trump of $200 or less are down 62.5 percent against 2019. He’s still raised a lot; I don’t want to mislead you here. The New York Times recently reported that Trump has more small donors than Joe Biden in some key swing states. But Biden has raised more from small donors overall, according to OpenSecrets. And in the most recent Federal Election Commission filings, Trump had $33.5 million cash on hand and Biden reported having $71 million. That was March 20, before Thursday night’s Radio City Music Hall event with Barack Obama and Bill Clinton, where Biden raked in $26 million.

All this is a shock to no one, because as we all know, Trump is spending a good chunk of his donations on his legal bills. The Times ran an amazing report about this on Wednesday. Of nearly $85 million in donations, almost a third, $27 million, has gone to legal bills. Hey, at least this time around, he’s apparently actually paying them.

Trump will have money. There’s no use pretending he won’t. But $400 sneakers and $60 Bibles are not signs of strength. They’re signs of weakness. Panic. Desperation. A guy who’ll sell anything that isn’t nailed to the floor.

And: He damn well should be panicked. Liberals and Democrats always impute to Republicans and right-wingers a strength they neither have nor deserve. Just because Trump tries to act like a tough guy and appeals to tough guys, liberals tend to concede he’s a tough guy. Nonsense. He’s a very weak and insecure man, as Mary Trump is always pointing out.

Physically, he’s horribly out of shape: probably couldn’t climb a 20-step flight of stairs without stopping halfway up and, Rambo iconography notwithstanding, couldn’t throw a punch that would crush a grape. A few months ago, I saw a photo of Biden biking around Rehoboth Beach, and it struck me: Has Trump even ever been on a bicycle in his life? I’d be shocked. Biden may be older, but really, who’s the more likely stroke victim here, the guy who still rides the occasional bike or the guy who eats well-done steaks and whose four major food groups are McDonald’s, KFC, pizza, and Diet Coke?

Psychically, he’s in far, far worse shape. He knows very well in some corner of his brain that he’s guilty of everything he’s accused of. He knows that if he doesn’t win the presidency, there’s a very serious chance that he ends up convicted of one of those crimes and in prison. It won’t be Angola Penitentiary, but there won’t be chandeliers in the bathroom or an 18-hole golf course for him to win phony championships on, either.

He would never admit any of this publicly, but privately Trump is surely terrified of this possible future. He knows that if he loses, the cases go forward, and he’s going to have to fight them as long as he possibly can, and it’s going to cost untold millions. Hence the sneakers and the Bible. And there’s surely more in store.

Some people will buy these things, there’s no question of that. But I’ll bet you that if we look hard six months from now, we’ll see that sales did not meet expectations. Of course, we’ll never know that because Trump will have full control of that narrative, and he’ll insist that sales were off the charts, and the press will print it. But we’ve seen this movie and heard this b.s. Trump Steaks were moving faster than they could cut them. Trump University was making millionaires out of many, many people. Right.

So let’s avert our gaze from the people who’d walk across hot coals for Donald Trump (while he stood off to the side, pleading bone spurs) and think instead about the ones who are slowly peeling off. They’re out there too. And they’re starting to see what you and I have so obviously seen for years: a twisted, desperate huckster who’s never cracked a Bible in his life and whose only religion is hustling the suckers who are born every minute.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.