Samuel Alito's Biterness Reachs Its Peak on a Negative Day for the Court
Samuel Alito's Biterness Reachs Its Peak on a Negative Day for the Court
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Thinking about what Donald Trump would do to the nation's democratic institutions and norms on the day he took office in January 2017, I wrote these words: "Trump will destroy them, if keeping Trump on top requires it." or make an effort. He might not be successful. We put our faith in conservative justices to decide in favor of our institutions rather than Trump. This is what will happen, trust me.
That optimism appeared well-founded in 2020 and 2021, as a number of
conservative and liberal judges—some of whom Trump personally
appointed—destroyed his attempts to illegally alter the election results
with roughly sixty court rulings. But following the Supreme Court on
Thursday? That hope has passed away. It is quite evident that the majority
of conservative judges on the nation's highest court are siding with Trump
over our institutions. And nobody was more aggressive than Samuel
Alito.
He questioned Michael Dreeben, the lawyer presenting the special counsel's
case, in a manner reminiscent of a twisted Lewis Carroll universe.
Will this not set off a vicious cycle that undermines our nation's ability
to function as a democracy, if an incumbent who loses a very close and
intensely contested election knows that the president may actually face
criminal charges from a vengeful political rival once he or she leaves
office?
Let's examine historical evidence, which is something I would have assumed
judges and attorneys would take carefully. In the nearly 250 years that
American democracy has existed, there have only been a total of 40
presidential handoffs (not including deaths in office). There is a chance
for some especially acrimonious and ugly post-election shenanigans because a
challenger has defeated a sitting incumbent 11 times.
Now, if Alito's question truly addressed a malignant condition that had
hampered American democracy throughout history and that appeared to be a
genuine issue that we needed to address with great seriousness, it would
make sense given our historical evidence that these power transfers had a
shaky past and that, perhaps, 12 of the 40 and 4 or 5 of the 11 had been
marked by unusual threats of retaliation against the departing
executive.
What does the record, though, reveal? It demonstrates, of course, that
throughout the entire history of the United States, there is only one
instance out of 40 total and one case out of the more restricted 11.
throughout other words, nothing unusual or non-peaceful has ever occurred.
Naturally, that was in 2020.
Moreover, there was a great deal of animosity throughout earlier power
changes. Do you believe that John Adams cherished the notion of giving
Thomas Jefferson authority? Was John Quincy Adams toasting to Andrew
Jackson with a flute of champagne? Were Grover Cleveland and Benjamin
Harrison, who shared victories, not resentful of their loss? These persons
were incompatible with one another. However, they followed custom, which
was accepted without question until Trump entered the picture.
Put another way, Alito assumes that there will inevitably be many lawless
Trumps in the future for America and discards everything of democratic
experience, seeing Trump as the new normal. Unfortunately, there's a
chance that history will validate his assessment of the Republican Party
(but only a chance; my cynicism regarding the lengths to which this GOP
will go is almost endless), but even I believe that Trump is probably
unique in this regard and that the average Republican—even neofascists
like Tom Cotton, should we be beset with a Cotton presidency someday—would
most likely concede power amicably if he lost.
However, consider what that implies about Alito's presumptions of
democracy as well as where Trump has led this nation. Regarding the first
argument, are we at a point where contesting election results will become
the norm? Where in our history has an opposition party been more likely to
exploit a legal technicality to bring charges against a former president
than to let him or her live in peace?
This is again another distorting of the truth. Trump is the only former
president who hasn't been left in peace, his supporters would argue. Yes, I
admit that to be accurate. However, there might be a cause for it! There are
two, in fact. Because a) it was always clear that Trump was not retired and
b) he is the only former president to have attempted to instigate a coup
against the United States of America and to have used his brilliant mind to
declassify important national security materials, Trump has not been left in
peace.
Regarding the latter, experts informed us—obviously—that, while Alito was a
conservative, he was not an extremist when George W. Bush appointed him to
the court in 2005. It's interesting to note that Maryanne Trump Barry,
Donald's sister, who Alito had worked with as a prosecutor, was one of those
who recommended Alito's nomination. In a 2022 feature, The New Yorker
revealed that Alito was asked in 2014 to identify a quality about his
personality that hadn't worked out for him. His response? a propensity to
remain silent.
The issue is resolved, huh? As author Margaret Talbot observed, the justice
"is holding his tongue no longer," despite Chief Justice John Roberts's
urgent pleas for the Dobbs decision to be balanced. In fact, Alito appears
to be saying whatever he wants in public these days, frequently with a
pugnacious sneer that suggests his previous politeness was hiding a great
deal of contempt.
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