The Supreme Court's Samuel Alito Problem | Crooked Media
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May 28, 2024
What A Day
The Supreme Court's Samuel Alito Problem

In This Episode

  • Ohio Republican Gov. Mike DeWine has called a rare special legislative session starting today to ensure President Joe Biden’s name appears on the state’s November ballot. But Ohio Democrats say Republicans are using it as a pretext to pass legislation that would make it harder for people to fund local ballot initiatives, like the one that enshrined abortion protections in the state’s constitution last year. Ohio House Democratic Minority Leader Allison Russo explains what’s at stake.
  • House and Senate Democrats are amping up the pressure on Supreme Court Justice Samuel Alito to recuse himself from two current cases involving former President Donald Trump and his efforts to overturn the results of the 2020 election. Their calls come after The New York Times reported two right-wing flags flying outside homes owned by Alito in the last few years. Jay Willis, the editor-in-chief of the website Balls and Strikes, says it’s more evidence the court needs more than an ethics code to fix its reputation problems.
  • And in headlines: Closing arguments in Trump’s criminal hush money trial are scheduled to start today, Israeli Prime Minister Benjamin Netanyahu said a missile attack that killed dozens of Palestinians at a tent camp in Rafah was a “tragic mistake,” and the Libertarian Party selected Chase Oliver as its presidential nominee during its convention Sunday.


Show Notes:



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Josie Duffy Rice: It’s Tuesday, May 28th. I’m Josie Duffy Rice. 


Tre’vell Anderson: And I’m Tre’vell Anderson and this is What a Day where we are congratulating Idaho drag queen Mona Liza Million on their million dollar settlement. 


Josie Duffy Rice: Mona was falsely defamed by a right wing blogger who posted a video of her performing at a pride event and claimed she exposed herself to the crowd, which she did not. 


Tre’vell Anderson: And now, Mona Liza Million has a million dollars. [music break]


Josie Duffy Rice: On today’s show, an airstrike by Israel’s military kills dozens of civilians in the Gazan city of Rafah. Plus, the Libertarian Party selects its presidential nominee. 


Tre’vell Anderson: But first, Ohio’s Republican Governor Mike DeWine, has called a special rare session today for the state Assembly to pass legislation that ensures President Joe Biden’s name is on the state’s ballot come November. 


Josie Duffy Rice: Tell me how we got here. 


Tre’vell Anderson: Yeah. So it all starts with a series of deadlines. In Ohio, the state’s deadline for getting a candidate on its presidential ballot is August 7th. The Republican National Convention, which is where Trump will officially be named the nominee, is in July, so there’s no problem there. But the Democratic National Convention, which is where Biden will formally be made the Democratic nominee, is almost two weeks after that deadline. So, Houston, there’s a problem obviously. Now when this has happened in the past, as recently as 2020 and 2012, before that, state lawmakers have made temporary adjustments to accommodate candidates of both major parties. But that hasn’t happened yet here. And they’re running out of time because Ohio Republicans are holding their approval hostage. Republicans won’t pass a bill unless it includes provisions they say would keep foreign money out of the state’s elections. But state Democrats say their Republican colleagues are actually trying to make it harder for citizens to fund local ballot initiatives, such as the one that enshrined abortion protections in their state constitution last year. I spoke with Ohio House Minority Leader Allison Russo about all of this and started by asking her, what’s the real purpose behind this special session? 


Allison Russo: What they really intend to do is under the cover of this, you know, coming in to save the day, and they have the help of governor DeWine to do this. They want to call this special session to rush through legislation that actually contains a number of restrictions on how we finance ballot initiatives and essentially creating winners and losers, creating a bunch of additional hurdles, putting the authority into some of our state politicians to go after groups, depending on whether or not they support a ballot initiative or not. So really, it’s just one more sophisticated attack on citizen led ballot initiatives, which have been incredibly successful in the state of Ohio. 


Tre’vell Anderson: Yeah. Now, what impact would this bill have on, for example, grassroots organizers who want to put issues on the ballot that matter to voters? 


Allison Russo: Well, right now, one of the pieces of legislation that actually the governor has said we should move forward with would force every single grassroots organization, whether you’re trying to get a stop sign in your community or you’re trying to organize a statewide initiative to essentially operate as a candidate campaign. So all of the paperwork, the reporting requirements, all of that would be new additional red tape. Most of these grassroots organizations, even to do things like collect signatures, don’t have to go through that process because we want it to be easy for citizens to come together and push issues that they care about in their communities. So that’s just one example. The second, I think more horrendous piece of this is it allows any sort of insinuation, whether true or not, that foreign money may have been donated without evidence to basically uh submit complaints and inundate our Ohio elections commission. And then it puts more power into the hands of our attorney general to then pursue those cases for prosecution. So, again, we’re creating witch hunts for ballot initiatives that they don’t agree with. 


Tre’vell Anderson: And what would you say is the bigger picture here? Right, like what do Republicans have to gain from making it harder for citizens to fund ballot initiatives, especially ahead of the November election? 


Allison Russo: Ohioans have been hugely successful in getting ballot initiatives across the finish line. It’s how we got reproductive rights, for example, enshrined in the Constitution last November. This November, there is an effort that is likely to be successful called, citizens not politicians, which will establish an independent, citizen led commission for redistricting purposes and will basically upend the gerrymandered stranglehold that Republicans currently have in the state, because that, in fact, will take away their gerrymandered power here in the state of Ohio. 


Tre’vell Anderson: That was my conversation with Democrat Ohio House Minority Leader Allison Russo. 


Josie Duffy Rice: Thanks for that Tre’vell. Meanwhile in Washington, House and Senate Democrats are amping up the pressure on Supreme Court Justice Samuel Alito to recuse himself from two major cases in front of the court right now. The cases deal with former President Donald Trump’s efforts to overturn the results of the 2020 election. And this is all because The New York Times reported that not one, but two far right flags were seen flying outside homes owned by Alito in the last few years. 


Tre’vell Anderson: Well, I can only imagine that these flags did not say Black Lives Matter. 


Josie Duffy Rice: They did not.


Tre’vell Anderson: Tell us about them and when exactly where they seen flying outside of Alito’s homes?


Josie Duffy Rice: First was an upside down American flag. This became a symbol for supporters of the Stop the Steal movement. If your brain is more forgiving than mine, you may have forgotten that the Stop the Steal movement are the people who believe, without a shred of evidence, that Trump won the 2020 election. So some of the January 6th rioters carried this flag, this upside down American flag, when they stormed the Capitol that day. And then, like a week after the insurrection, that flag was seen flying outside of Alito’s Virginia home. And this was right before President Joe Biden was inaugurated. Now, you may be thinking, I know you’re not Tre’vell but someone out there might be thinking, weird coincidence, but who knows what it means? 


Tre’vell Anderson: Mm hmm. 


Josie Duffy Rice: Well, let me tell you that there was a second flag, and that flag was the Appeal to Heaven flag. This is a Revolutionary War era flag. It’s white, it has a pine tree in the middle. Also carried by January 6th rioters, also associated with the Christian nationalist movement, also seen flying outside of Alito’s house, this time his New Jersey beach home. And this was just last summer. And that timing is also noteworthy, because that’s when the justices were considering whether to take up one of those January 6th cases I mentioned, over whether some of the rioters can be charged with the crime of obstruction. Trump is also charged with obstruction. So the court’s decision on this case could affect him, too. The other case, of course, is whether Trump can claim presidential immunity from prosecutions for trying to overturn the election. We are only weeks away from decisions in both of these cases, and the fact that one of the Supreme Court justices was flying far right flags outside of their houses multiple times. It really raises serious questions about A Alito’s ability to be impartial. More questions, because I think we already had some questions. 


Tre’vell Anderson: I was just about to say, this ain’t the first time we are–


Josie Duffy Rice: Yeah. 


Tre’vell Anderson: –questioning Alito’s impartiality, but what has he had to say about this so far? 


Josie Duffy Rice: With the first flag, he blamed his wife for flying the upside down flag. He told the New York Times that she put it up in response to a fight with some of their neighbors. 


Tre’vell Anderson: Oh, oh okay. That makes sense. 


Josie Duffy Rice: Now, I ask you, have you ever heard of anybody being mad at their neighbors and flying a flag as a result? 


Tre’vell Anderson: Particularly upside down. 


Josie Duffy Rice: Wild? And you are a Supreme Court justice. And we’re supposed to believe like–


Tre’vell Anderson: Wild. 


Josie Duffy Rice: –this has no political content? And it especially falls apart when you realize there’s a second flag. He has not said anything about the second flag. It gets harder to claim that you are also having another neighbor dispute at a different house. 


Tre’vell Anderson: Yeah, interesting stuff here. Okay, so does this violate some kind of ethics code? You know, I don’t know. It just would seem like this is a problem to me. 


Josie Duffy Rice: It would seem to violate the ethics code the court adopted late last year amid a cascading scandal involving another justice, Clarence Thomas, and his financial ties to a conservative billionaire. The court’s new code says that a justice must, quote, “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” I would think that that means, like, don’t go publicly waving right wing flags around your house. 


Tre’vell Anderson: Right. 


Josie Duffy Rice: But the court’s ethics code also doesn’t give any guidelines on how to enforce it. This is the conundrum. There’s really no way to punish Alito, really to push him off of these cases. It’s up to him to recuse himself. We’re relying on his common decency and his commitment to upholding the law and the court’s reputation, which come on. Clearly, those things are not in abundance. Right? So to better understand what a scandal like this means for a court already facing a reputational crisis, I spoke with Jay Willis. He is the editor in chief of Balls and Strikes, a website that covers the Supreme Court through a progressive lens. He’s been on the show before. I started by asking him what kind of damage Alito’s actions have on the public perception of the court. 


Jay Willis: It’s almost refreshingly honest. As bad as Sam Alito’s politics are, I find it much more insulting that he and the entire conservative legal movement apparatus behind him insists that he actually doesn’t have any politics at all, and neither do any of the justices who are doing these things, who are getting rid of the civil rights of people they don’t like. So, yes, it damages the reputation of the court, but the court’s reputation was already kind of terrible. And at least this way, we just have all our cards on the table for once. 


Josie Duffy Rice: Yeah. We also learned a few days ago that the Washington Post knew about Alito’s upside down flag back in 2021. And then sat on the story for years. So what does that say about how news organizations have really failed to hold this court accountable? 


Jay Willis: Yeah, in some ways, it’s almost the perfect encapsulation of where we are with the Supreme Court and with Supreme Court media and how wrong both of those things have gotten. Again, on the one hand, we have a Supreme Court justice who at the very least, lives in a home where talking about Joe Biden as maybe the illegitimately elected president who won only because of voter fraud is just like normal and acceptable. Looking at the statements that he gave to the New York Times about these flags, the craziest thing about it to me is that he blames his wife for raising the flag. But like, if you take any of sort of the West Wing fantasy of what a Supreme Court justice is seriously, the idea that they strive to avoid bias, they strive to avoid politics. At the very least, if you’re a Supreme Court justice and your wife runs up a stop the steal flag, you see that and you’re like, ooh yeah, I need to take that down ASAP. Like, we can’t be doing that here. This is a terrible look. And he didn’t do that. But even moving on from the substance of that, we also have a Supreme Court media apparatus that shows up to the Alitos’ house and gets comment from both of them, and determines that the upside down flag is not a political symbol. It’s not worth reporting on. I’ve written a lot about the extent to which legacy Supreme Court media is so intertwined with the institution that they prop up the fantasy of an apolitical court as much as the justices do themselves. But this is almost a caricature of that, right? We are days removed from pro-Trump rioters storming the Capitol, getting ready to hang Mike Pence. And you have a senior Supreme Court reporter at, like, the Washington Post deciding, mmm you know what? It would just be sort of rude to talk about this like, bro, what would you say your job is? Come on. 


Josie Duffy Rice: So Alito is not the only compromised justice on these January 6th cases. Justice Clarence Thomas’s wife, Ginni, was also actively involved in the effort to overturn the results of the 2020 election. This is all happening while Thomas was weighing in on the lawsuits challenging the election results. So if you take these two things together, how could Thomas and Alito’s actions undermine the decisions in these massive cases? 


Jay Willis: We all know that the 2024 presidential election is going to be a waking nightmare of misinformation. The presumptive Republican nominee who already tried to, you know, use false conspiracy theories about voter fraud to steal one election, has already said that if he loses another election, it will be for the same reason. To have like the highest court that is going to be deciding the inevitable litigation about this election feature two people who may or may not believe that the elections were ever on the up and up in the first place, like the Supreme Court’s public approval rating is already in the toilet. This is one of the few ways I think that it can become even less credible is having two people who are broadly in the tank for Donald Trump. 


Josie Duffy Rice: So last year, the court adopted an ethics code, kind of in response to the push back against Thomas. Does what Alito did violate that ethics code? And to the extent that justices have historically followed, like unofficial rules over how they’re supposed to act, do Alito’s actions defy those rules? 


Jay Willis: I mean, existing judicial ethics rules, yeah, they probably prohibit, like flying a coup symbol in your front yard if you are a sitting judge, much less a justice, much less a justice who is actively deciding cases relating to the vote counts that prompted that coup attempt in the first place. On the other hand, like ethics rules are really like rearranging deck chairs on the Titanic with the Supreme Court. Like, the problem with the Supreme Court is not whether or not Alito or Clarence Thomas are filling out their, like, vacation paperwork properly. The problem is that Sam Alito and Clarence Thomas have the politics that they have and have life tenure on the Supreme Court. 


Josie Duffy Rice: So two of the top Democrats on the Senate Judiciary Committee have asked to meet with Chief Justice John Roberts about what they call the Supreme Court’s, quote, “ethics crisis.” They wrote that Alito’s recusal is, quote, “both necessary and required.” Like, what can Congress do here? What can Roberts do here? And what is the value in them kind of sending letters like this?


Jay Willis: For the most part, lawmakers really can’t do anything to a Supreme Court justice, anything meaningful short of impeachment, which obviously is not on the table given the composition of the Senate right now. This is a central problem with a Supreme Court that is captured by far right reactionaries is that the very few checks that exist on its work and on its personnel are, like, basically meaningless at this point. 


Josie Duffy Rice: Is there anything that Roberts can do, and will he do anything? 


Jay Willis: Like it’s cool that Senate Democrats want a meeting with him. It will be cool if he grants it. But on the other hand, like Chief Justice Roberts has spent his whole judicial career in the service of the Republican Party’s interests. Like John Roberts’ biggest power that he could exercise here is saying something about this, saying something about Clarence Thomas’s ethics violations, saying something about Ginni Thomas’s involvement in January 6th, saying something about this Alito story, the simple fact that he doesn’t, that he’s silent is like, sorry, but that’s like kind of everything we need to know about this. If he cared about this, he could at least say something. He could at least say that this is embarrassing for the court. He could call for Thomas and Alito to recuse themselves. He can’t make them do it. But he could, like his words, would have at least some value in sort of this proverbial court of public opinion or within the editorial board circles. Right? And I think the fact that he has not said anything about this indicates that the very few powers he has to actually do anything about it are not something he’s going to be exercising in this situation. 


Josie Duffy Rice: That was my conversation with Jay Willis, editor in chief of the website, Balls and Strikes. And that is the latest for now. We will get to some headlines in a moment, but if you like our show, please make sure to subscribe and share it with your friends. [music break]




Tre’vell Anderson: Let’s get to some headlines. 


[sung] Headlines. 


Tre’vell Anderson: The jury will hear closing arguments in former President Donald Trump’s hush money trial today in New York. It’s been more than four weeks of witness testimony and tense courtroom proceedings. A reminder, Trump faces 34 counts of falsifying business documents to cover up the hush money payments he made to adult film star Stormy Daniels ahead of the 2016 election. Trump denies having an affair with Daniels and has pleaded not guilty to all charges. Once closing arguments conclude, Justice Juan Merchan will give the jury instructions, laying out what they can and can’t consider when deliberating in the first criminal trial against a former U.S. president. 


Josie Duffy Rice: Israel launched a deadly attack on the Gazan city of Rafah on Sunday, killing at least 45 civilians. Israel’s military reported that the airstrike targeted a Hamas compound and killed two senior militants. But the strike also caused a fire at a tent camp of displaced Palestinians, mostly women and children. Though the Israeli military initially described the airstrike as, quote, “precise.” Prime Minister Benjamin Netanyahu said, quote, “despite our best effort not to harm those not involved, unfortunately, a tragic mistake happened last night.” Videos showed just horrific, devastating carnage after the attack even by the standards of this war. Before the airstrike, UN’s International Court of Justice called for Israel to stop its military operation in Rafah. Yet two Biden administration officials told Axios on Monday that they were still assessing whether the attack violated the president’s red line. 


Tre’vell Anderson: The Libertarian Party selected Chase Oliver as its presidential nominee during its convention on Sunday. Oliver won after seven rounds of votes. His name may be familiar to some. He’s run for Congress several times in Georgia. Most notably, he earned enough votes in the 2022 Senate race to send Democratic Senator Raphael Warnock and Republican Herschel Walker to a runoff. Both former President Donald Trump and independent presidential candidate Robert F. Kennedy Jr attended the convention, vying for the nomination. 


[clip of Donald Trump] The Libertarian Party should nominate Trump for president of the United States. Whoa! [sounds of audience booing] That’s nice. That’s nice. Only if you want to win. 


Tre’vell Anderson: Oh, wow. 


Josie Duffy Rice: I am obsessed with that’s nice. Is that what he said? That’s nice? Incredible. 


Tre’vell Anderson: Wow. So the Libertarian Party deemed Trump ineligible because he never submitted the proper paperwork. And RFK Jr. was eliminated in the first round of voting after he received only 19 votes, which was only 2% of the total vote. 


Josie Duffy Rice: Rapper Nicki Minaj was arrested in Amsterdam over the weekend after Dutch authorities allegedly found marijuana in her luggage. Minaj was headed to Manchester, the next stop on the European leg of her Pink Friday Two world tour, when airport security searched her bags and took her into custody. Minaj filmed much of her encounter with the police and streamed part of it live on Instagram. And in a post on X, Minaj wrote, quote, “they’re being paid big money to try to sabotage my tour because so many people are mad that it’s this successful and they can’t eat off me.” I want more proof [laughter] that the Amsterdam police were paid off by her enemies. But I do love this as like a storyline like a–


Tre’vell Anderson: Something to get the barbs going. 


Josie Duffy Rice: Let’s put this in a show. I love that. It doesn’t sound true, but you know Minaj also claimed that weed is legal in Amsterdam, but it’s actually not. Carrying small amounts of cannabis is a punishable offense. It’s not enforced and you can use the drug in licensed coffee shops, but it is a crime to bring weed in or out of the country as well. 


Tre’vell Anderson: That’s the important part here, whether or not somebody is being paid or not to sabotage the tour, you not supposed to be having the ganja. 


Josie Duffy Rice: Right. 


Tre’vell Anderson: And transporting it across country lines. Come on now. 


Josie Duffy Rice: Don’t bring drugs over national borders. I think that’s like a just a rule of thumb we should all consider. 


Tre’vell Anderson: Yeah, but the barbs are, you know, activated. I’m sure they’re going to launch the investigation that you’re looking for Josie. 


Josie Duffy Rice: I’m ready. 


Tre’vell Anderson: Give it 48 hours and somebody will have the proof that you were looking for. I’m sure. 


Josie Duffy Rice: Amsterdam’s days are numbered. [laughter] And those are the headlines. 




Josie Duffy Rice: That is all for today. If you like this show, make sure you subscribe. Leave a review. Congratulate Mona Liza Million and tell your friends to listen. 


Tre’vell Anderson: And if you are into reading and not just Alito take down op eds like me. What a Day is also a nightly newsletter. Check it out and subscribe at I’m Tre’vell Anderson. 


Josie Duffy Rice: I’m Josie Duffy Rice. 


[spoken together] And don’t bring weed to the airport. 


Josie Duffy Rice: Just don’t do it. 


Tre’vell Anderson: Don’t do it. 


Josie Duffy Rice: Don’t do it. 


Tre’vell Anderson: And also if you gonna do it [pause] never mind. [laughing] [music break] What a Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our associate producers are Raven Yamamoto and Natalie Bettendorf. We had production help today from Michell Eloy, Greg Walters, and Julia Claire. Our showrunner is Erica Morrison, and our executive producer is Adriene Hill. Our theme music is by Colin Gilliard and Kashaka.