The pressure is building for the Senate to do something about Alito

Supreme Court Justice Samuel Alito’s insurrectionist flag flying was bad enough the first time around. The second instance demands action. Congress, Chief Justice John Roberts, and the third branch body that oversees the judiciary—the Judicial Conference—have to act, but it’s not going to happen unless the Senate Judiciary Committee raises some hell. 

The problem is the chair of that committee, who is also the No. 2 leader of the Senate Democrats, is dithering. Dick Durbin of Illinois, told reporters “I don't think there's much to be gained with a hearing at this point” when news broke that Alito flew an upside-down American flag at his home days after the violent insurrection of Jan. 6, 2021, as well as while the court was still considering whether to take up cases over the 2020 election.

“I think he should recuse himself from cases involving Trump and his administration,” Durbin continued.

After the second flag scandal, Durbin is still just calling for Alito’s recusal on cases the court is deciding right now: Donald Trump’s immunity in criminal cases in his efforts to overturn the 2020 election and on the prosecution of Jan. 6 riot participants. He’s still not sure whether his committee should investigate; He wants more time to think about it.

“Justice Alito is not taking care to avoid political identity,” he told The Washington Post. “He is identifying the right-wing elements in our political system. And that’s unfortunate. It’s further evidence of the need for him to recuse himself from cases that involve the Trump administration.”

“[Chief] Justice Roberts has to step back and realize the damage that’s being done to the reputation of the court,” Durbin added.

Roberts might realize that, but the chances that he’s going to do something about it are about as unlikely as Alito’s recusal.

Outside groups, including Indivisible and Demand Justice, as well as legal experts are pressuring Durbin to act by launching an investigation into Alito’s insurrectionist leanings. “Chief Justice Roberts must demand that Justices Thomas and Alito not be allowed to participate in deciding the immunity case or any other decision related to Jan. 6,” Norman Eisen, former impeachment counsel to the House Judiciary Committee, and Michael Podhorzer, senior fellow at the Center for American Progress, wrote this week for MSNBC.  

“And the Senate should hold hearings immediately investigating their conduct. Any other course risks the court’s legitimacy, Americans’ rights and the rule of law,” they concluded.

Durbin is facing pressure inside the Senate as well. Two Democrats on the Judiciary Committee, both nipping at Durbin’s heels to succeed him as chair, want more. Sen. Sheldon Whitehouse of Rhode Island told MSNBC’s Lawrence O'Donnell that what Alito is doing by refusing to recuse on these cases is breaking a "law passed by Congress, specifically applicable to Supreme Court Justices. When they pay no attention to it, they are actually violating statutory law."

Whitehouse went on to say that “it has gotten to the point where the Chief Justice has to engage, and I think you will see more action on that shortly out of the Judiciary Committee.”

Sen. Richard Blumenthal of Connecticut told MSNBC’s Chris Hayes Tuesday that “Chief Justice Roberts ought to be summoned to a hearing before the Judiciary Committee of the Senate. He ought to show some leadership and be held accountable.”

“Of course, Justice Alito ought to be subpoenaed as well in my view, but likely he is not going to appear and I think it is a time of reckoning for the Congress,” Blumenthal continued.

“Justice Alito says the Congress can't regulate, to use his term, the Supreme Court. But the Congress set salaries. It sets rules of procedure. It sets the numbers of justices. The founders didn't want the United States Supreme Court to be above the law.”

Alito famously declared himself and the rest of the justices just that in an interview with The Wall Street Journal last year, in which he made a startling assertion of constitutional power: “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”

That interview was with David Rivkin Jr., a regular contributor to the WSJ who also happens to be a lawyer who was about to argue a major tax case before the court. Durbin once again called on Alito to recuse from that case, as well as on Roberts to do something about Alito, for all the good it did.

This is not so subtle pressure on Durbin to do more than tweet sternly worded statements from two of his senior committee members. They see what all of us see: Asking nicely for Alito to recuse—which Durbin and House Democrats have done—is weak sauce.

It’s time to act. House Democratic leadership should be talking impeachment instead of issuing empty demands to Alito. No, Speaker Mike Johnson won’t go along with it, but Democrats are a hair's breadth from having control of the House and they should act like it. They are also likely to take the House back in November, which gives an impeachment threat now more weight.

The Senate Judiciary, led by Durbin, has to investigate. They have to put maximum pressure on Roberts starting right now, before the court issues its rulings on Trump immunity. 

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We're heading across the pond for this week's episode of "The Downballot" after the UK just announced it would hold snap elections—on July 4, no less. Co-host David Beard gives us Yanks a full run-down, including how the elections will work, what the polls are predicting, and what Labour plans to do if it finally ends 14 years of Conservative rule. We also take detours into Scotland and Rwanda (believe it or not) and bear down on a small far-right party that could cost the Tories dearly.

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