Defending the Judiciary in 2024

May 17, 2024

Events on Thursday highlighted yet another reason Democrats must vote in record numbers in November to defeat MAGA extremism. Republicans are undermining the institution of the judiciary in every way imaginable. Eroding the legitimacy and authority of the courts is textbook fascism. Indeed, in fascist states, courts are co-opted or replaced, becoming instruments of totalitarian rule.

Every American should be concerned about the coordinated assault on the judiciary by MAGA extremists.

It is difficult to identify Thursday’s most egregious attack on the legitimacy of the courts, but it seems appropriate to begin with Justice Samuel Alito.

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Justice Alito displays a “Stop the Steal” flag on his front lawn.

As a Supreme Court justice, Alito has been unapologetic in his efforts to defend Trump's lawlessness. He has risen to Trump's defense with gleeful spite and unveiled resentment against those seeking to hold Trump accountable under the Constitution.

On Thursday, the New York Times revealed that Alito’s home displayed an upside-down US flag during the fraught days after the January 6 insurrection. At the time, flying the US flag upside down was a symbol calling to “Stop the Steal” of the 2020 election from Trump. It was a call to insurrection—proudly displayed by a US Supreme Court justice sworn to defend and protect the Constitution. See New York Times, At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display. (This article is accessible to all.)

In response to an inquiry from the Times, Alito said,

I had no involvement whatsoever in the flying of the flag.

Notably, Alito did not deny the veracity of the photograph of the flag flying upside down on his lawn. He did not deny the symbolism of the upside-down flag. He did not deny that he was aware of its continued presence in front of his house. Instead, he blamed his wife, whom he claimed flew the “Stop the Steal” banner in response to anti-Trump signs in the neighborhood.

Alito’s response to the Times is a lie. He owns the flag. He owns the flagpole. He owns the property on which the flag was displayed. He permitted it to remain on display on his property. He, therefore, did have “involvement” in “flying the flag.” It does not matter that it was his wife who physically raised the “Stop the Steal” banner on the flagpole. Alito’s hair-splitting denial is misleading and incomplete—and therefore false.

All of this leaves us with a second justice on the Supreme Court whose spouse was a booster of the effort to overthrow the Constitution and prevent the peaceful transfer of power.

Those justices—Alito and Thomas—are currently considering Trump's presidential immunity defense to the indictment alleging that Trump attempted to subvert the election. Under any reasonable reading of Code of Conduct that applies to Supreme Court justices, Alito and Thomas should have recused themselves long ago (under Canons 2 and 3).

The fact that Alito and Thomas have failed to do so is an open wound on the Court, oozing pus and bile every time they take the bench in a matter involving Trump's coup and insurrection.

Ultimately, the feckless Chief Justice John Roberts is to blame. He has allowed a sprawling and continuing scandal to consume the dwindling legitimacy of the Court. He has allowed that scandal to fester in order to provide cover for the most corrupt president in our nation’s history—which is a fitting epitaph for Roberts’ squandered legacy.

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Texas Governor Abbott nullifies jury’s conviction of racist who killed Black Lives Matter protestor.

In the aftermath of the murder of George Floyd, Daniel Perry shot and killed a protester who was carrying a gun (which is legal in Texas). A jury heard the evidence—including Perry’s claim of self-defense—and convicted Perry of murder. Perry was sentenced to 25 years in prison. After the verdict, Texas Governor Greg Abbott said he wanted to pardon Perry.

On Thursday, the Texas pardon board gave Abbott the recommendation to pardon Perry. Abbott issued an immediate pardon, and Perry is now back on the street—with his right to carry firearms restored. See Texas Gov. Greg Abbott pardons Daniel Perry, Army sergeant convicted of murdering protester in 2020 (nbcnews.com).

In pardoning Perry, Abbott issued a statement that denigrated the jury’s verdict and consideration of the evidence of self-defense. Abbott wrote,

Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury . . . .

 When a jury hears the evidence and concludes “beyond a reasonable doubt” that the defendant is guilty, notwithstanding claimed self-defense, that verdict is not a “nullification” of the law; it is the application of the law. But in Abbot’s MAGA extremist administration, jury verdicts that run contrary to MAGA orthodoxy can be disregarded.

Overriding the justice system to advance partisan political ends is dangerous. If some Texans believe that the law does not apply to them, they will act lawlessly—exactly as Daniel Perry did when he shot a protester who was trying to make the point that Black lives matter to the same degree as white lives. Today, Governor Greg Abbott told Texans that is not true in Texas—and he did so by attacking the integrity of the jury trial system. The message and the means are antithetical to democracy.

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New parade of GOP representatives appears at Trump trial

The “red tie” brigade was back in force at the Trump trial in Manhattan. About a dozen Republicans (mostly from Congress) appeared outside the courtroom to bash Judge Merchan, his family, and prosecutors. They filed into the courtroom as a phalanx, interrupting the cross-examination of Michael Cohen.

Why was Thursday’s spectacle worse than those on previous days? Because those who rose to show their support for Trump included Trump's indicted co-conspirator, Jeffrey Clark, as well as outcasts of the Freedom Caucus Lauren Boebert and Matt Gaetz.

In a particularly appalling statement, Gaetz posted a picture of Thursday’s parade of GOP officials at the trial alongside the caption, “Standing back and standing by, Mr. President.”

To be clear, Gaetz’s statement is a threat of violence against the judiciary if Trump is convicted. There is no other reasonable interpretation of the picture and caption in the context of the statements made outside the courtroom. See HuffPo, Matt Gaetz Parrots Trump’s Call To Proud Boys At His Trial.

The continued spectacle by Republican lawmakers is a clear violation of the gag order. The government officials are escorted into the courtroom and seated in seats reserved for Trump's defense team. As visible members of Trump's defense team, their statements are made on behalf of Trump. Judge Merchan should find Trump in contempt for those statements and order Trump to be detained. The failure of Judge Merchan to do so further undermines the authority of the judicial system.

While I am not criticizing Judge Merchan, it is clear that the willingness of Republican officials to break every norm of the rule of law has overwhelmed the ability of the judge to enforce the rules against Trump. And with the overlay of Gaetz’s threat of violence, Judge Merchan’s reluctance to apply the rule of law to Trump is understandable—though disappointing.

Here's my point: Thursday brought to the fore multiple examples of the MAGA effort to undermine the judiciary in the US. The only way to stop the attacks is to defeat Republicans up and down the ballot. The 2024 election is important for many reasons, not merely because we will re-elect Joe Biden. We must reverse the retrograde, reactionary MAGA movement to destroy one of the most important guardrails in democracy—a fair and independent judiciary.

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Justice Alito dissents in case that would have triggered a Great Depression

On Thursday, the Supreme Court upheld the Consumer Financial Protection Bureau (CFPB). In so holding, seven justices rejected a theory that would have declared two-thirds of federal funding unconstitutional and eliminated regulations that control the banking and financial markets. The banking industry was so alarmed that it begged the justices to save the CFPB and the regulations that instruct the industry on how to conduct business lawfully. See Ian Millhiser in Vox, The Supreme Court decides not to trigger a second Great Depression.

The case is notable because it represents another defeat for the rogue judges on the reactionary Fifth Circuit who are hellbent on destroying the federal system of regulation that is responsible for the orderly operation of the world’s largest economy. See Mark Joseph Stern in Slate, Supreme Court CFPB: The judicial arsonists went too far for the conservative justices this time.

But justices Alito and Gorsuch dissented, arguing that Congress must continually re-authorize and fund federal programs that are permanent fixtures of the American system of regulation. As Mark Joseph Stern notes, Alito cited to English history under King James to bolster his contention that the Supreme Court can strike down congressional appropriations:

To side with the 5th Circuit, Alito had to fixate on a somewhat random period of English history in the 17th century—from James I to Charles I—to assert that the Constitution empowers courts to strike down appropriations that they dislike.

Alito and Gorsuch are dangerous radicals whose voices must be overwhelmed by expanding the Court.

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Opportunities for reader engagement

Join me at Walk the Walk USA’s meeting focusing on New York

Please join Walk the Walk USA at its next zoom with grassroots partner: Make the Road NY, Wednesday May 22 at 5:30 pm PT and 8:30 pm EST.  I will make introductory remarks at this meeting.

Make the Road NY builds power within immigrant and working-class communities to get out the vote (GOTV). The three (3) competitive House seats in their region could determine which party wins a majority in the House this November. We will hear directly from organizers Perla Silva and Daniel Coates about their on-the-ground relational strategies. When they knock on doors, those doors open to them because they are trusted messengers. With disinformation, voter suppression, election subversion and the possibility of autocracy, that trust is more important than ever. 

Walk the Walk USA is an all volunteer group that fundraises for grassroots partners that work year-round to build power in their communities. After identifying the most critical swing districts in the country, where a single voter will have an outsized impact up and down the ballot, we do extensive research about the most effective grass-roots voter empowerment organizations in those districts. We tell the story of this fragile democracy and the inspiring story of our partner's groups' persistence and purpose, to make your political donations matter.

Sign up here for the Zoom.

Join Airlift at an event focusing on turning North Carolina from purple to blue!

There's lots of buzz about North Carolina for the 2024 elections. Come hear why as Airlift presents "North Carolina: Turning Purple to Blue," featuring the dynamic new NC Democratic Party Chair Anderson Clayton, at 26 the youngest Democratic party chair ever.  We'll also hear from Airlift Partners Down Home NC and Carolina Federation about how we can help keep the governorship Blue, break the GOP supermajority in the state legislature, and add North Carolina's electoral votes to keep Joe Biden in the White House.

Join us online, Thursday, May 23, 5:00 PT / 8:00 ET by signing up here.

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Concluding Thoughts

I always pause before I write newsletters that focus on the pervasive dangers of MAGA extremism. I fear that doing so will increase anxiety and despair among readers—which is the opposite reaction I hope to engender in writing this newsletter. But, as usual, a little bit of perspective goes a long way in helping us to see that we can overcome the challenges we face today.

Thursday was the 70th anniversary of the Supreme Court’s 1954 decision in Brown v. Board of Education. Later that year, the Supreme Court ordered the states to proceed with “all deliberate speed” to implement the ruling in Brown that “separate but equal” was inherently unequal and unconstitutional.

Many states resisted and obstructed the Supreme Court’s ruling in Brown v. Board of Education. Fifteen years later—in 1969—the Supreme Court had enough foot-dragging by the states and issued a ruling that “all deliberate speed" standard is no longer constitutionally permissible and orders the immediate desegregation of Mississippi schools. See Alexander v. Holmes County Bd. of Ed., 396 U.S. 19 (1969).

Fifteen years. That is how long some states defied a Supreme Court order mandating the end of segregated schools. But the rule of law eventually prevailed, and the holding Brown was eventually enforced.

As we attempt to measure our success in resisting MAGA efforts to undermine the judiciary, the timeline of the ultimate enforcement of the holding in Brown v. Board of Education is instructive. Civil rights advocates and attorneys kept up the fight for fifteen years—and longer. If we can reverse the MAGA assault on the courts in two election cycles, that will be lightning speed by comparison. And we are on the cusp of achieving that success.

So, rather than feeling disheartened by the disclosures on Thursday, we should recognize that we have already placed in motion the political strategies to achieve victory. That knowledge does not diminish the shock and outrage of compromised justices on the Supreme Court or jury nullification by the Texas governor. But it should allow us to remain confident that we are on the path to victory. We will win. It is only a matter of time. The news on Thursday simply highlighted the stakes of a battle that has already been joined—and which we are winning!

Stay strong! Talk to you tomorrow!