Senate Republicans Cannot Wait to Replace Thomas and Alito With More Right-Wing Freaks
The Court that convenes for oral argument on Monday could look very different by this time next year.
If Donald Trump wins a second White House term next month, Senate Republicans are excited about much more than the prospect of enacting a de facto national abortion ban. Justices Clarence Thomas and Samuel Alito, the Supreme Court’s two most strident culture warriors, turn 77 and 75 next year, respectively. A Trump victory coupled with a Republican Senate majority might persuade either or both men to retire, secure in the knowledge that their fellow Republicans could replace them even more unabashed right-wing freaks.
From Sahil Kapur of NBC News:
“High — extremely high to certain,” Sen. Josh Hawley, R-Mo., who is on the Judiciary Committee, said when he was asked about the odds of Trump’s having the opportunity to appoint more Supreme Court justices if Republicans emerge victorious in the election.
“I think you’ll see, on the conservative side, at least one retirement. I’m speculating, but I’m fairly confident of that,” Hawley said, adding that Republicans would probably look for more potential justices in the mold of Thomas and Alito — “particularly if we’re replacing one of those individuals.”
At this point, calling Alito’s interest in stepping down an “open secret” is sort of insulting to Washington’s hallowed tradition of open secrets, and it’s pretty funny for Republicans like Hawley, who is notably plugged in in elite conservative legal movement circles, to pretend to be totally in the dark about this stuff. At a Supreme Court Historical Society event earlier this year, the journalist Lauren Windsor recorded Alito’s wife, Martha-Ann, grousing about the constraints imposed upon her freedom to display reactionary-coded symbols by her husband’s lingering occupation of a position of public trust. “I want [to fly] a Sacred Heart of Jesus flag, because I have to look across the lagoon at the pride flag for the next month,” she told Windsor. “I said [to Alito], ‘When you are free of this nonsense, I’m putting it up.’”
In July, CNN’s Joan Biskpuic reported that Alito “appeared weary of it all” in the term’s final days, and has “reflected in private about retirement.” Again, between his age and hints like Martha-Ann’s, this wasn’t a shock, but it was the first time I’d seen any of the big-name Supreme Court journalists confirm that, as much as Alito has enjoyed his job over the past several years, he might also be content to pass the baton to a revanchist with fresher legs.
I will not bore you here with another rendition of the stakes of this year’s election, which I am guessing you are grimly familiar with by now. But this year’s Senate map is, to put it generously, tricky for Democrats, who currently hold a one-seat majority in the upper chamber. Thanks to Joe Manchin’s retirement in deep-red West Virginia, the party would have to sweep the other competitive races just to earn a 50-50 split, in which case control of the Senate would come down to who replaces Harris as the nation’s next vice president.
As the Supreme Court’s conservative supermajority convenes on Monday for another nine-month term of rewriting American law as it sees fit, it is absolutely possible that six months from now, things are much, much worse, if a newly-elected President Donald Trump has the numbers in the Senate he needs to confirm, say, a literal January 6 enthusiast to the Supreme Court, and JD Vance available to break ties if his services are required. As Hawaii Democrat Mazie Hirono astutely put it to NBC News, replacing Thomas and/or Alito with John Birch Society weirdos several decades their junior “would not be good.”
“We would have even more getting rid of precedents. You’d have more Dobbs-like decisions. And there’s a whole slew of these kinds of decisions that the Supreme Court has been engaged in,” said Hirono, who is on the Judiciary Committee. “It’ll just be worse. So I think what that will lead to is further calls, I hope, for Supreme Court reform.”
For the most part, I think anything that increases the urgency and salience of Supreme Court reform—expansion, term limits, jurisdiction-stripping, whatever—is a good thing. That said, having to write the phrase “Associate Justice James Ho” with any degree of regularity would put that theory to the test.
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Speaking of Judge Ho (and his speaking for us), perhaps Judge Ho (and the other judges who are abusing their positions on courts to censor speech at universities) should re-think their efforts to unconstitutionally deprive Americans of our freedom of speech (and even our sovereignty). They could start by re-reading Citizens United v. FEC, 558 U.S. 310 (2010).
"Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular" means "used to disseminate political speech from a particular speaker." The public retaliation of judges against students and educational institutions "interferes with the 'open marketplace' of ideas protected by the First Amendment."
In our "republic where the people are sovereign, the ability of the citizenry to make informed choices" is "essential." When we speak regarding public issues or public servants, we speak as sovereigns, and, generally, it is not the place of any public servant to dictate who may speak or about what. "The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it." "When Government seeks" to "command where a person may get his or her information" it "uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves."
“Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” “[T]he First Amendment stands against attempts to disfavor certain subjects or viewpoints.” “Prohibited, too, are restrictions distinguishing among different speakers.” “The First Amendment” does “not permit” making any “categorical distinctions based on” the “identity of the speaker and the content of the political speech.”