Samuel Alito: Graceless and tone deaf

     “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court—period."
               Associate Justice Samuel Alito

He is right in saying it is controversial. It is controversial as a matter of constitutional law. After all, Justices serve during their period of "good behavior" and that gives the House and Senate the impeachment tool to decide what constitutes good behavior.  It is also controversial on political grounds because of the unvoiced message embedded in his words.  He is thumbing his nose at Congress and the public. He is saying "I win. You lose. The rules favor me. I am untouchable."

Hubris.

The Supreme Court's power comes from its credibility for fairness and reasonableness. When Justices appear biased or self-interested they diminish the Court's institutional credibility. Alito and Clarence Thomas enjoyed the luxury hospitality of billionaires with business before the Court. They put themselves into a cozy circle. It looks corrupt, and the fact that it isn't illegal makes its worse.  

Painting memorializing a gathering of GOP lawyers Peter Rutledge, Leonard Leo, and Mark Paoletta, along with Justice Thomas and GOP donor Harlan Crow. Displayed at Crow's resort home.

In a different context a Board of Directors. might admonish -- or replace --  an out of control Executive Director or CEO for the good of the institution. Alito says no check or balance applies to him. This is an opportunity for self-regulation by the Supreme Court. I am not optimistic. We are not in a moment of conspicuous grace by public officials, resigning when exposed in a bad light. A different ethic is in place. Partisans define self-restraint as weakness and lack of passion. People are cautioned not to negotiate against themselves and instead to argue the strongest form of your stretch position. 

We are seeing that behavior in the hot issues of the culture wars. Examples from the right include demands for a national abortion ban and permit-less carry of handguns and large-magazine rapid-fire rifles. The positions please partisans, but it asserts the least credible and weakest position in the eyes of the wider public.

On the cultural progressive left would be the example of Lia Thomas, the University of Pennsylvania trans swimmer, as eligible to swim competitively against women. 

Far better politics would have been for Thomas to have shown grace. To have self-regulated. Perhaps to have raced once as a woman, won big, then immediately announced she thought this was unfair, and default the win. The rule letting Lia Thomas compete as a woman defies a first-glance appearance of fairness. Would that concession have set back the rights of male-to-female trans people? I suspect the concession would have done the opposite and sped up nuanced rules that meet the public's sense of fairness and justice. As it is, rule-making is taking place in an environment of energized legislators with a wedge issue to exploit, gleefully using it to switch the subject from abortion. Asserting the strong form -- that Thomas has every right to compete in elite competitions as a female swimmer -- backfired. 

Samuel Alito has done the near impossible. He has replaced Clarence Thomas as the poster child of clueless, entitled Supreme Court Justices squandering credibility by asserting a position that offends common sense.

It is dangerous to run up the score when you think you have the advantage. 

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