Late Thursday, the New York Times broke a major story about Supreme Court Justice Sam Alito:

After the 2020 presidential election, as some Trump supporters falsely claimed that President Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American flag.

One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel A. Alito Jr., in Alexandria, Va., according to photographs and interviews with neighbors.

The upside-down flag was aloft on Jan. 17, 2021, the images showed. President Donald J. Trump’s supporters, including some brandishing the same symbol, had rioted at the Capitol a little over a week before.

In the story, Alito proclaimed ignorance about the flag and blamed his wife via a written statement. Later, the Justice did an exclusive interview with Fox News (which totally isn’t telling at all) to explain that his wife hung the flag in response to an abusive and profane neighbor excited about Trump’s election lies. At no point does Alito or his wife explain why they chose to respond to this abuse by flying an upside-down flag, seemingly in solidarity with the violent insurrectionists who stormed the Capitol. This is notable because the Supreme Court was considering whether to hear a case that could impact the election. Even though the flag incident happened in 2021, it betrays a bias on Alito’s behalf. The Court is currently weighing a case about Donald Trump’s immunity from insurrection crimes. Regardless of the ruling, the court took the immunity case. This will likely ensure that Trump does not go to trial for those crimes before the election. If Trump wins, he could pardon himself and dispose of the case forever.

Alito’s conflict of interest is not an isolated instance. Clarence Thomas failed to report a long list of financial gifts from people with business interests before the court. He refused to recuse himself from cases involving Trump’s efforts to overturn the election even though his wife was an active participant in the effort.

There is almost nothing Democrats can do. Representative Adan Schiff called on Thomas and Alito to recuse themselves. They won’t. Impeachment is not an option. A Republican House would not take it up and there is no universe where a sufficient number of Republican Senators would vote to remove a corrupt Justice.

With all of that said, we can channel our anger at Alito and the rest of the corrupt MAGA court into productive action. We can win the presidential election, in part by running against a corrupt Supreme Court.

The Argument for Running Against the Supreme Court

This seems hard to believe now, but back in 2016 many Republican voters did not like Trump. They didn’t believe he was a real conservative, they thought he was a conman and a cad. However, in the end, they held their noses and pulled the lever for him for one reason and one reason only — the Supreme Court.

At the time, there was an open Supreme Court seat that could tip the balance of the court. Antonin Scalia had died earlier that year and Mitch McConnell blocked President Obama from filling the seat. The winner of the race between Hillary Clinton and Donald Trump would get to appoint Scalia’s replacement. For Republicans who didn’t like Trump, the Supreme Court was reason enough to vote for him.

Democrats could use the court in the same way. The most recent New York Times/Siena poll shows that a swath of the electorate is voting for Donald Trump and a Democrat for Senate. These are voters who agree with the Democratic position on a wide range of issues including abortion, democracy, health care, and economic policy, but have soured on President Biden for one reason or another. To win reelection, Biden needs to win back these ticket splitters. Like in 2016, the Supreme Court could bring them home.

This is the court that overturned Roe v. Wade and is helping ensure Trump avoids accountability for his crimes. They are corrupt and out of touch with mainstream American values.

When it comes to this election, the stakes for the court could not be higher. As Democratic strategist Michael Podhorzer wrote in his newsletter:

Consider that by 2028, Clarence Thomas will be 80 and Samuel Alito 78, and Sonia Sotomayor will be 73 and has a chronic health condition. That means that by 2028, Trump could make nominations that add up to a 7-2 Federalist Society majority, with John Roberts the only one over 60 years old. On the other hand, Biden’s second term nominees could constitute a 5-4 “Democratic” majority, with Elena Kagan the only one over 60 years old (68). The stakes are similar in terms of the federal appeals and district courts, where a second Trump term would likely provide Federalist Society majorities on even more of the circuits, and many of his second term appointments would be unqualified ideologues like Matthew Kacsmaryk.  A second Biden Administration (with a Senate majority), however, could claw back Federalist Society majorities in several circuits. 

Running against a corrupt court is pushing on an open door. American faith in the Supreme Court is at an all-time low.

While I am a supporter of court expansion and term limits for Supreme Court Justices, at this moment, Democrats should highlight their support for financial disclosure rules, a code of ethics, and more accountability for the Supreme Court. A Navigator Research poll from last fall found large majorities in favor of such legislation.

Making voters — especially the less politically engaged — care about the Supreme Court is difficult. To succeed, we have to explain why it matters to their lives; how the rulings of a MAGA court will restrict their freedoms and be a boon to powerful interests. The fundamental question of this election is whether Democrats can hold together the anti-MAGA majority that won elections in 2017, 2018, 2019, 2020, 2022, and 2023. The best way to do that is to make this election about something bigger than a contest between two men. The Supreme Court is a perfect issue to go big.

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