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SUPREME GASLIGHTING  
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Michael Podhorzer
May 19, 2024
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_ Supreme Court Justice Alito flew a flag of insurrection at his
home. Here's the most important takeaway: but for Alito and his
similarly conflicted fellow justices, Donald Trump would almost
certainly be a convicted felon for J6 by now. _

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Once again, a sensational disclosure is rocking SCOTUS, after photos
surfaced showing an insurrectionist symbol in front of Justice
Alito’s home on January 17, 2021. This time, let’s redirect our
attention from just the successive particular scandals of individual
justices (upside down flags, Alaskan fishing trips, etc.). Instead, I
am going to step back and explain how they interrelate – and connect
to what really matters to this country and our future. To do that, I
need to introduce three important concepts: 

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_CONTEXTUAL AMNESIA_ is what I call it when an individual forgets or
overlooks relevant information or facts in certain contexts while
remembering them in others. 

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_DISMISSED AS IMPROVIDENTLY GRANTED (DIG) _is a legal term
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by appellate courts, particularly SCOTUS, when it dismisses a case
because it has decided that it should not have taken the case in the
first place. 

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_FRUIT OF THE POISONED TREE1
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a legal metaphor
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describe evidence that is obtained illegally, holding that if the
source (the "tree") of the evidence or the method by which it was
obtained is tainted, then any evidence derived from it (the "fruit")
is also tainted and typically inadmissible in court. 

With those concepts in mind, we must recognize that the upside-down
flag incident is about much more than Alito’s conflicts of interest
or poor character. The most important takeaway is that _BUT FOR ALITO
AND HIS SIMILARLY CONFLICTED FELLOW JUSTICES, DONALD TRUMP WOULD
ALMOST CERTAINLY BE A CONVICTED FELON FOR J6 BY NOW_. 

Alito’s most obviously conflicted fellow justice is Clarence Thomas,
whose wife Ginni actively assisted those working to overturn the
election.2
[[link removed]] In
this instance, we have to make the rebuttable presumption3
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the decision to hear Trump’s appeal of the decisive, unanimous DC
Circuit rejection of his immunity claims depended on Alito’s and
Thomas’ votes.4
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such, _THE ONLY LEGITIMATE MOVE FOR THE COURT TO MAKE ON THE IMMUNITY
CASE NOW WOULD BE DISMISSING IT AS IMPROVIDENTLY GRANTED._ 

THE MEDIA HAS CONTEXTUAL AMNESIA

Unfortunately, _MUCH OF THE MEDIA SUFFERS FROM CONTEXTUAL
AMNESIA_ – unmindful of its own excellent exposes of the
justices’ corruption when it reflexively accepts as legitimate the
majority rulings that depend on those justices’ votes. And so, while
the Congress absolutely should be considering impeachment proceedings
against Alito, as well as moving forward on court reform, the
immediate business the media and Congress should be putting to Chief
Justice Roberts is, at a minimum, to demand a full accounting of Alito
and Thomas’ roles in agreeing to hear
the _Trump_ and _Fischer_ appeals, as well as their roles in the
Court’s ongoing consideration of those cases. 

Moreover, while it is well known that several of the justices had
political backgrounds, there is another gross conflict of interest.
All six Republican-appointed justices reached the Court with the
backing of the Federalist Society, with a billionaire-funded,
religious-right-backed mandate to “make America great again” –
that is, to take us back to the America of the 1920’s, when
capitalism was unrestrained and racial and gender hierarchies were
uncontested. Indeed, Trump’s pick of the last three justices
fulfilled his campaign promise to select his SCOTUS nominations from
the Federalist Society list.  

With Thomas and Alito aged 74 and 76 respectively, the six Federalist
Society justices know that a second Trump term would enable them to
pass on their seats to equally MAGA justices, sealing their legacy on
SCOTUS for a generation. If even one of the Democratic appointees had
a health or other issue leading to an empty seat, _TRUMP COULD MAKE
NOMINATIONS THAT ADD UP TO A 7-2 FEDERALIST SOCIETY MAJORITY, WITH
JOHN ROBERTS THE ONLY ONE OVER 60 YEARS OLD. _To that, add the
additional hundreds of other Trump appointments to federal district
and appeals courts, which would enshrine the new “the law is what we
say it is” jurisprudence. And, of course, we’ll see more
Kacsmaryks and Cannons on the Federal Bench.

DISMISS THE MAGA MAJORITY AS IMPROVIDENTLY CONFIRMED

More broadly, _AT LEAST FIVE OF THE JUSTICES THEMSELVES SHOULD BE
DISMISSED AS IMPROVIDENTLY CONFIRMED_: Thomas, Alito, Gorsuch,
Kavanaugh and Barrett are the only five
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116 SCOTUS justices to be approved by senators representing a minority
of the American people. Of all the justices to serve in the last
century and a half, Gorsuch, Kavanaugh and Barrett are the only ones
to have been named by a president who did not win the popular vote.
And, of course, Gorsuch and Barrett both owe their seat to Mitch
McConnell. That is the case with Gorsuch because McConnell
illegitimately refused to fill a vacancy when Obama was president. It
is true of Barrett because McConnell illegitimately rammed through her
nomination after tens of millions of Americans had cast their ballots,
and as every survey and forecast indicated that Biden would be the
next president. Moreover, although it was obvious at the time, it has
since been more substantiated that both Thomas and Kavanaugh perjured
themselves at their confirmation hearings.5
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Despite all the evidence, the media and congressional leaders credit
Roberts with being the “adult in the room” whose primary
motivation is the court's credibility and his own legacy. Yet it has
always been clear that the only action he will take to preserve the
credibility of the court is to scold those who question the legitimacy
of its rulings. This should not be a surprise. In 2009, he wrote the
dissent in a case in which the Court ruled in favor of a plaintiff
whose $50 million judgment had been overruled by an elected state
Supreme Court (by a narrow 3-2 margin), with the deciding vote cast by
a state supreme court justice who was elected with a $3 million
contribution _from the defendant_. Roberts argued that questioning
the fidelity of justices to their oath of impartiality would “lead
to an increase in allegations that judges are biased,” or “erode
public confidence in judicial impartiality.” 

As Roberts might put it: _THE BEST WAY TO END CHARGES THAT THE COURT
IS CORRUPT IS TO STOP CORRUPT JUSTICES FROM SERVING ON THE COURT._

AMERICA’S DYSFUNCTION IS THE FRUIT OF THE POISONED TREE

It’s long past time we _ACKNOWLEDGE AND RECKON WITH THE EXTENT TO
WHICH OUR PRESENT NATIONAL DYSFUNCTION IS THE FRUIT OF THE POISONED
TREE – THE ILLEGITIMATE SCOTUS MAJORITY._ When he was confirmed,
Roberts famously claimed that the proper role of the court was to be
“an umpire, calling balls and strikes.” _BUT UNLIKE THE
CONSERVATIVE AND LIBERAL CHIEF JUSTICES BEFORE HIM WHO TOGGLED BETWEEN
NARROW AND EXPANSIVE STRIKE ZONES, THE ROBERTS COURTS DECLARES WINNERS
AND LOSERS –_ignoring the rulebook altogether
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providing free passes to the special interests they represent,
and striking out the rights and freedoms
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heroic Americans over generations fought and died to accomplish
democratically. 

The execution of this agenda has been nothing short of a slow-motion
coup against our freedoms. The Supreme Court has not only transformed
itself into a democratically unaccountable lawmaking body; it has used
this illegitimate power to create a one-way ratchet that makes the
rest of our system less democratically accountable.  

Consider this thought experiment. Imagine that in November 2008,
immediately after Barack Obama was elected, sweeping in Democratic
majorities of 60 seats in the Senate and 256 in the House, you sank
into a coma. Revived today, you would be told that Donald Trump was
ahead or tied in polling (however unreliable
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despite leading an insurrection; that in the next election, after
after two thirds of Republicans in Congress voted to reject the
results of the 2020 election, the GOP flipped control of the House,
and elevated successive election-deniers to the Speakership; that the
Voting Rights Act was all but repealed; that _Roe v. Wade_ had been
overturned; that the wealthy and corporations are free to make
unlimited expenditures in elections, more than doubling the cost of
federal ones; that the South was again largely in the grip of
one-party authoritarian regimes; and that the right to own a AR-15 was
the one of the few remaining freedoms Americans could confidently
claim. And then you were told that NONE of those changes were the
result of Congressional legislation. What would you conclude? _IT’S
ALL FRUIT OF THE POISONED TREE_.

Supreme Gaslighting

Throughout their confirmation hearings the six Federalist Society
justices pledged allegiance to _stare decicis
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to precedent [[link removed]] in making
their decisions [[link removed]].6
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they also claimed allegiance to originalism,7
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Trojan Horse whose utility is its privileging “original intent”
over precedents. It was a tool precisely designed to be the pretextual
justification for breaking precedents.8
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of course, their commitment was not to _stare decisis_, nor
originalism, but to _ipse dixit
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it” – it’s the law because we say it’s the law.

Like Roberts – who believes that the credibility of the legal system
is better served by presuming whatever judges do, they do in good
faith, than by holding accountable those who obviously don’t – we
cling to the belief, against all evidence, that the credibility of the
Supreme Court and the “rule of law” are better served by defending
the institution rather than holding it accountable to democratic
scrutiny.

1
[[link removed]] Or
“poisonous tree,” but I prefer “poisoned” because the tree
didn’t get that way on its own.

2
[[link removed]] Her
activities included emailing state lawmakers in Arizona and Wisconsin
to urge them to ignore the results of the 2020 presidential election
and vote instead for an alternate slate of electors, and texting Mark
Meadows to urge him to falsely claim election fraud.

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[[link removed]] A
legal concept where a fact is assumed to be true until someone comes
forward to contest it and prove otherwise. It places the burden of
proof on the party challenging the presumption to provide evidence
that the presumed fact is not true. If sufficient evidence is
presented to counter the presumption, it can be overturned.

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[[link removed]] Assuming
that Kagan, Sotomayor, and Jackson did not vote to take the appeal,
without Thomas and Alito, granting cert would have required united
support from Roberts, Kavanaugh, Gorsuch, and Coney Barrett.

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[[link removed]] A
specially appointed federal panel of judges concluded that 83 ethics
complaints brought against Kavanaugh were “serious
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that they were obligated to dismiss the complaints because no existing
authority allows lower court judges to investigate or discipline
Supreme Court justices.

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[[link removed]] _Stare
decisis_ means “to stand by things decided” in Latin.

7
[[link removed]] For
excellent take downs of originalism, see Slate’s How Originalism
Ate the Law [[link removed]], the Amicus with Dahlia
Lithwick podcast [[link removed]] series that
accompanies it, and Dean of Berkeley’s law school Erwin
Chemerinsky’s _Worse than Nothing: The Dangerous Fallacy of
Originalism_.

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[[link removed]] In
2020, Harvard law professor Adrian Vermeule said the quiet part out
loud
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_But originalism has now outlived its utility, and has become an
obstacle to the development of a robust, substantively conservative
approach to constitutional law and interpretation… originalism has
prevailed, mainly because it has met the political and rhetorical
needs of legal conservatives …. But circumstances have now changed.
The hostile environment that made originalism a useful rhetorical and
political expedient is now gone._

* Samuel Alito
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* SCOTUS
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