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The Supreme Court is perhaps the most powerful secret society in American history.
Sure, we all know their names. We can read their opinions. But more importantly, their deliberations — the way they actually rule on the cases that affect us all — are top secret.
What do the justices say behind closed doors? Do they really believe that the Supreme Court is apolitical, that their only job is to “call balls and strikes” in the words of Chief Justice John Roberts?
We were probably going to spend our entire lives in the dark. Until a left wing journalist-slash-activist, Lauren Windsor, secretly recorded her conversations with Justices Roberts and Samuel Alito, and Alito’s wife, at the Supreme Court Historical Society’s annual meeting earlier this month.
In my opinion, Windsor’s recordings are easily the best political journalism published in Rolling Stone since Hunter S. Thompson was covering Nixon v. McGovern. Finally, Americans can peak behind the curtain and see what the “wizards” on the Supreme Court say when they don’t think we can hear them.
You had an inkling that Alito might be a far-right nut job when it was revealed his wife has been flying literal freak flags? Listen to the tapes and you’ll learn you were right on the money.
When Windsor told Alito that “people in this country who believe in God have got to keep fighting for that — to return our country to a place of godliness,” Alito concurred wholeheartedly. “I agree with you. I agree with you,” he echoed.
You didn’t believe conservative propagandists when they somehow managed to tell you with a straight face that Alito’s wife just flew those flags as part of a neighborhood spat? Huh, I wonder what she said about that “in private.”
Blissfully ignorant of Windsor’s mic, Martha-Ann Alito, Sam’s belle, boasted that she still isn’t over her flag kick. Calling her critics “feminazis” (a term she assuredly borrowed from venomous bigot Rush Limbaugh), Martha-Ann said that now she wants to fly a “Sacred Heart of Jesus flag.”
And why does she want to fly that flag? Was she deeply touched by her latest reread of the Sermon on the Mount? No. In her own words, Martha-Ann wants to fly a Sacred Heart of Jesus flag “because I have to look across the lagoon at the Pride flag for the next month.”
But I reckon that the most surprising thing to come out of Windsor’s guerilla journalism is the revelation that Roberts isn’t all that bad. Sure, he’ll write the majority opinion that ends affirmative action and he’ll concur with the ruling that rolls back women’s reproductive rights.
But at least Roberts understands the separation of church and state, and we oughtn’t take that for granted anymore. When Windsor set a trap and asked if the Supreme Court should help make America a Christian nation, Roberts refused to take the bait. Thank God.
“It’s not our job to do that,” Roberts said. “It’s our job to decide the cases as best we can.”
The Alitos and Chief Justice Roberts have provided America with two competing visions of what the American government could be in a few years’ time. Either we manage to preserve Jefferson’s “wall of separation between the church and state” or we will soon see a federal government in the throes of Christian nationalism.
And every single person in Alabama saw what happens when judges try their hand at preaching back in February: Unable to justify banning in vitro fertilization with the law alone, Alabama Supreme Court Chief Justice Tom Parker cracked open his Bible. And because Justice Parker decided to crack open his Bible, couples across Alabama were left unable to start and to grow their families.
Sure, the Alabama state legislature passed a band-aid bill unbanning IVF. And Alabama Senator Katie Britt has sponsored a fairly toothless bill meant to do the same at the federal level. But when judges have law books in one hand, and the Bible in another, may God have mercy on our souls.
America has already been erring far too close to irreversibly mixing politics and religion, to tearing down that necessary wall. Trump’s apparent chief-of-staff-in-waiting, Russ Vought, has been advocating for a vicious Christian nationalism and plotting to remake the Constitution in Trump’s image while waiting to return to the White House. Thanks to school choice programs and tax breaks, billions of tax dollars are already subsidizing private religious institutions.
The Supreme Court, though, occupies a special place in the American political order. Essentially since the Founding, it has always been the primary veto point preventing political progress.
In historian Eric Foner’s 2019 book “The Second Founding,” he explains that the Supreme Court “played a crucial role in the long retreat from the ideals of Reconstruction.” Thanks to its inaction, and its reinterpretation of the Reconstruction amendments, Southern “Redeemers” were able to rip away Black Americans’ civil rights for generations.
During the Progressive Era, the Supreme Court struck down necessary laws establishing maximum hours and minimum wages. In the first years of President Roosevelt’s New Deal, the Supreme Court threatened countless laws that we hold to be American institutions today.
For every Brown v. Board of Education, there are a dozen cases where the Supreme Court has taken some legal sandpaper to Americans’ rights (many of which are well documented in the 5-4 podcast).
Fundamentally, the power of the Supreme Court is the power to say “No” to America’s democratically elected representatives. I don’t believe that power should be vested in men who evidently view the First Amendment as a suggestion.
In an ideal world, of course, Alito would resign. For that matter, so would Justice Clarence Thomas. In America, no one should sit on any court, much less the Supreme Court, who believes it to be their job to make the United States a more Christian nation.
But we don’t live in an ideal world.
Alito and Thomas are not going to resign. They are not even going to recuse themselves if Trump files more challenges to the election results this November.
Until they die, or safely retire under a Republican president, America is stuck with these theocrats in black robes. The wife of a sitting Supreme Court justice had her brain positively pickled by Rush Limbaugh and dreams of using Christian imagery to nettle her LGBTQ neighbors and that’s not going to change any time soon. (And somehow she’s still not the worst Supreme Court spouse.)
But the Supreme Court is not the only branch of government that can or should be interpreting the Constitution. Congress is constitutionally empowered to restrict which cases the Supreme Court can hear and could do so if they decided to.
More importantly, everyone who wouldn’t like Supreme Court justices quoting Scripture to justify taking away the American people’s rights should be pushing to make sure these radical right-wing justices are outnumbered. The court can be expanded. New justices could be appointed.
It is past time to admit that many of the supposed legal wizards on the Supreme Court are political hacks legislating from the bench who must be made irrelevant.
Lauren Windsor threw the curtain back. Ignore all of the court’s defenders telling you to pay no attention to the men behind it.
