The rule of law cannot survive if the judiciary ceases to be independent.
Right before Thanksgiving, the New York Times reported some disturbing news about the Supreme Court: In 2014, Justice Samuel Alito allegedly leaked the impending decision in Burwell v. Hobby Lobby to anti-choice lobbyists weeks before the Court publicly issued it.
This is just the latest revelation of inappropriate contact Alito has had with conservative activists, adding further confirmation that the Court’s right flank has worked with far-right activists to advance an extreme conservative agenda, particularly around abortion access.
It’s not news that the Court’s conservatives have a political motivation for their opinions. After all, President Trump promised to appoint justices who would overturn Roe v. Wade, and then they did just that.
But this revelation about Alito is different. It suggests something more sinister: that some of the justices are acting in concert with conservative movement leaders, leaking opinions, signaling outcomes, and backchanneling. This is disturbing and devastating. The rule of law cannot survive if the judiciary ceases to be independent. We now have the first unquestionable sign that the Court’s independence has been profoundly compromised.
This democracy will only survive if we fight for it. The Trump presidency and Jan. 6 insurrection shocked us out of our complacency, and the consequences—like the Dobbs decision that overturned Roe—are still unfolding.
There are many steps that can and should be taken to respond to these revelations.
First, Congress can hold hearings to investigate the allegations and properly scrutinize the Times’ reporting. It’s also as clear as ever that we need to pass Supreme Court ethics reforms, which already enjoy bipartisan support and need not wait until this investigation is complete.
The White House Counsel and Department of Justice can also pursue investigations and assess the extent to which the Court has been compromised. That includes not only the latest allegations into Alito but also the extent to which Justice Clarence Thomas’ wife, Ginni Thomas, sought to overthrow the 2020 presidential election—perhaps the most noxious assault on our democracy of the last century.
The new special prosecutor should be given free rein to explore the Court’s connection to and possible support of extremist, anti-democratic groups. We cannot rely on leaks, whistleblowers, and a slow drip of appalling malfeasance. A full investigation must happen now.
Those of us outside of the government have a role to play too. An independent judiciary is the foundation of our democracy and critical to every issue our members advocate for—we must band together.
The Court has been compromised to such an extent that we have good reason to question the integrity of every decision.
At Alliance for Justice, we are inviting our 150 member organizations to participate in a war room investigating and countering the Court’s extremism. We are calling on all our members and our allies in the progressive movement to lend their expertise and their constituencies to join us in this fight.
We will seek disclosure from the justices of any relationships with the parties and demand recusals whenever there is even the slightest demonstration of impropriety. And if they refuse, as they usually have, we will call into question every resulting decision and make clear our intention to do so. This could prove destabilizing to the rule of law, yes. But the Court has been compromised to such an extent that we have good reason to question the integrity of every decision.
This democracy will only survive if we fight for it. The Trump presidency and Jan. 6 insurrection shocked us out of our complacency, and the consequences—like the Dobbs decision that overturned Roe—are still unfolding. We must do what is required to defend our rights, and a critical aspect of that is properly countering the corruption of the Court and the judicial process.
The rule of law is the foundation of everything. If it is fatally compromised, we cannot expect our democracy to endure.
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