Supreme Court's Samuel Alito problem compounded by Donald Trump's immunity case

By dragging out a case they shouldn't have even taken, the conservative majority tacitly endorses January 6

By Amanda Marcotte

Senior Writer

Published May 21, 2024 6:00AM (EDT)

Samuel Alito | Supreme Court Building (Photo illustration by Salon/Getty Images)
Samuel Alito | Supreme Court Building (Photo illustration by Salon/Getty Images)

Public outrage continues this week in response to the disturbing New York Times report that, in the days after the Capitol riot of January 6, 2021, a symbol of support for the insurrection was displayed at the home of Supreme Court Justice Samuel Alito. The justice has half-heartedly tried to deflect blame onto his wife with some convoluted tale involving her bickering with the neighbors, but in the end, there's no real evading the conclusion: The Alitos publicly hat-tipped the fascist effort to overthrow democracy because they backed Donald Trump's attempted coup. Now there's a growing chorus of people, including Senate Democrats, calling on Alito to recuse himself from all coup-related cases, including one involving Trump's claims to be "immune" from prosecution for his attempts to steal the 2020 election. 

The justices are part of this larger Republican drift away from being opposed or even just ambivalent to January 6.

Like Justice Clarence Thomas, whose own wife was intimately involved in the attempted coup plot, Alito is almost certainly going to blow off all the criticism. Chief Justice John Roberts, for his part, will likely allow it. This is for one simple reason: The entire GOP majority on the court is complicit with Trump's designs to end democracy.

The other Republican-appointed justices on the Supreme Court may not all be as loud and proud about it as Alito and Thomas, but that's more of an aesthetic difference than a material one. When it gets down to brass tacks, the Republican majority is cooperating fully these days with Trump's seditious plans. We know this for two reasons: First, the supposedly "originalist" conservative justices ignored the plain text of the Constitution — which explicitly forbids politicians who have "engaged in insurrection or rebellion" from holding future office — to rule that Trump can still run for president. Second, they are currently blocking Trump from being tried for his efforts to steal the 2020 election, using transparently disingenuous methods. 

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The timing is especially telling here. The justices were practically tripping over their robes in their haste to issue their illegitimate decision in the ballot case. They heard oral arguments on February 8 and issued their unconstitutional, pro-Trump ruling less than a month later. But on the immunity claims, they are taking a luxurious amount of time. They pushed oral arguments nearly two months after Trump's trial in his Jan. 6 case was supposed to start. It's been nearly a month since then, and still no sign of a ruling. And that's despite every good faith legal scholar pointing out that this case should have never even made it to the Supreme Court. The D.C. circuit already issued a rock solid, common sense ruling that presidents don't get to just attempt coups without consequences. 

Even if some conservative justices, as they seemed to indicate during arguments, aren't keen on ruling that a president is forever above the law, it may not matter. By taking up the case in the first place and taking their sweet time ruling on it, they likely doomed any chance that special prosecutor Jack Smith could actually bring Trump to court to answer to a jury before the election. And that's assuming the court issues a straightforward affirmation of the D.C. decision. Odds are they create a bunch of new, nonsense legal tests, forcing the lower courts to tinker with this case for months, if not years — and if Trump wins the election, he will kill the case anyway. 

If the Supreme Court continues to delay Trump's Jan. 6 trial, Jennifer Rubin of the Washington Post writes, it's proof that the fascist sympathies of Alito and Thomas "have thoroughly corrupted the court." Sure, it's possible Roberts hears her and, within a week, we have a Supreme Court ruling that allows the federal trial to start this summer. It's also possible, theoretically, that a massive asteroid decimates planet Earth and ends our collective misery in one glorious swoop. But neither will realistically happen. The latter we know because NASA would have detected such an anomaly. The former we know because the Roberts court is run by a bunch of partisan hacks. If it weren't, they would have already kicked Trump off the ballot, as the Constitution requires, while also inviting the Justice Department to try him with the swiftness the public deserves. 

Because Alito and Thomas are especially bad at hiding the petty spite that fuels their authoritarian ideology, they get most of the public's negative attention. But if it were just two of them, it wouldn't really matter so much on a nine-person court. The reason they are so powerful is that they have the quiet support of the other four Republicans on the bench, who have demonstrated in the past few months that they are fine with what happened on January 6, so much so that they are happy to torch the reputation of the Supreme Court to shield Trump from consequences. 

This is all happening while elected Republican officials are lining up to exalt Trump's criminality. Last week, Republican politicians by the bucketful made the pilgrimage to New York City to speak out for Trump in a campaign fraud case where the overwhelming documentary evidence points to his guilt. This is after he's been found liable in two other cases for committing decades of business fraud and for sexually assaulting journalist E. Jean Carroll so brutally that the judge repeatedly said it was basically rape. To stand by him now is not really about believing he is innocent of these various crimes so much as it's championing an explicitly fascist principle: Dear Leader should not have to obey the law. 

Not only are Republicans venerating Trump's past crimes, but they are actively encouraging him to commit more in the future, especially concerning election fraud. When reporters ask Republican politicians if they will accept the results of the 2024 election, almost to a person they find their way to say "only if Trump wins." This isn't just political tapdancing around the easily miffed feelings of Trump and MAGA voters who want to believe elections are "rigged" if they lose. Every politician who backs the Big Lie is, whether they admit it to themselves or not, justifying political violence and future criminal conspiracies to steal the next election. 

When he was actually in the process of attempting to steal the 2020 election, the court was less accommodating of Trump's fascist impulses than they are now. They rejected his lawsuits attempting to throw out the electoral college votes of states that backed President Joe Biden. So it's understandable that the punditry is surprised to see the justices grow more protective of Trump's aspirations to be a dictator. But the justices are part of this larger Republican drift away from being opposed or even just ambivalent to January 6. Nowadays, most Republicans openly embrace Trump's Big Lie and any crimes committed to seize control of government illegally. Alito has revealed he was one of the hardcore fascists who was with the insurrectionists from day one. But, like many Republicans, the rest of the conservative justices on the court look to have moved in his direction. 

By Amanda Marcotte

Amanda Marcotte is a senior politics writer at Salon and the author of "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself." Follow her on Twitter @AmandaMarcotte and sign up for her biweekly politics newsletter, Standing Room Only.

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