By Chris Satullo

The upside-down flag flap finally did it for me. That pushed me over the edge.

Here’s my new thought about the U.S. Supreme Court: Rev up the bulldozer; major renovations in store.

I’ve resisted that thought for a long time, even as I’ve expressed rage at the grotesque ethical lapses of Supreme Court Justice Samuel Alito and his partner in genteel corruption, Clarence Thomas. Or, as I dipped deep into my well of adjectives to describe how hypocritical, wrong-headed and ahistorical I find the stances of textualism and originalism that Alito and Thomas champion on this precedent-shredding Roberts court.

But, up to now, I’ve resisted the siren call of the big, easy, obvious remedies proposed by many: 

• Expanding the number of justices on the court – to give the now-squelched liberal viewpoint of “a living Constitution” a fighting chance.
• Instituting term limits for the robed poobahs of our highest court, who currently can serve for life if they care to.

Why had I hesitated about those two increasingly popular steps? That old, prudent axiom: Be careful what you wish for; it can come back to bite you.

The high court has always, since the nation’s founding, had its moments of naked partisanship and moral blindness, despite its pretensions to weighing the scales of justice with its blindfold on. And this current crowd – with Alito, Thomas and others gleefully swinging a wrecking ball to smash precedents and undo progress on voting rights, reproductive rights, environmental and consumer protection – has given us a painful skein of bad, consequential rulings.

But still … remember Dred Scott? Or  Hammer v. Dagenhart? Or Korematsu v. United States? Or, for that matter, Bush v. Gore? We’ve seen courts make tragic rulings before. Is this court majority so uniquely bad that it justifies extreme measures like packing the court or instituting term limits? 

I used to think the answer was no. Particularly because the rules you might be eager to rush into place to rein in the partisan tilt of this court could be used to lock in that same tilt even more firmly should the other team win the next presidential election, along with control of the Senate.

But Alito and Thomas have changed my mind. The problem, as legal scholar and former Supreme Court clerk Aaron Tang argues in his new book, Supreme Hubris, is that the partisan/ideological tilt of the Roberts Court is married in several members of the majority with an unprecedented arrogance, judicial overconfidence and ethical blindness.   

Alito doesn’t grasp that his snarfing of free trips and other goodies from billionaires with business before the court – or the flying of pro-Stop the Steal flags at both his Virginia and Jersey Shore homes – could damage some people’s confidence in his impartiality. But the problem is worse than that.

It’s that he clearly doesn’t care what his critics, or the public in general, think. To him, they don’t matter. He’s not on the court to serve that type of American, the people who do not see the world with the same fierce moral and ideological clarity that he credits to himself. In fact, I’d bet he sees them as precisely the problematic people whose excesses God – not just George W. Bush – put him on the court to curb.

He’s made it clear he considers himself the sole judge of his own behavior – and is accountable to no one but his allies and friends. This is the definition of arrogance – and a wellspring of overreaching and hypocrisy. It is not a set of attitudes that should be tolerated in one of the most powerful people in our government – especially one of the only nine with lifetime gigs.

Particularly pathetic is Alito’s “blame my wife; what was I supposed to do?” excuse for the flying of Stop the Steal symbols outside both his homes. (Thomas claims a similar “hey, those crazy gals, what can you do?” self-exoneration from any consequences stemming from his wife Virginia’s even-more blatant activism on behalf of “Stop the Steal”). Equally noxious is the pseudo-feminism of Alito’s “my wife is an independent person” alibi. The author of the misogynist Dobbs opinion on reproductive rights has no problem telling millions of American women what they can and can’t do with their bodies, but he’s scared to tell Martha-Ann to take down a flag? 

There is no way either Alito or Thomas should sit in judgment of any cases relating to the Jan. 6 insurrection or Donald Trump’s political future. There is, alas, also no way they will ever voluntarily recuse themselves. And Chief Justice Roberts has no legal leverage he could use to force them to recuse. Deep down, he might even be inclined to do so to salvage the plummeting prestige of the institution he leads – now at an all-time low in the Gallup Poll. But he’s got no juice to do it.

(I could make a semi-persuasive case that each man should be impeached, but – slow your roll, Satullo – that ain’t ever happening in Mike Johnson’s House of Representatives.)

In Aaron Tang’s book -whose subtitle is: How Overconfidence Is Destroying the Court and How We Can Fix It – he suggests that the ethical arrogance displayed by Alito and Thomas goes hand in hand with a damaging judicial hubris. Several justices, Alito and Roberts in particular, do not, he says, hesitate to trash precedents and inject chaos into the lives of millions – if that’s what’s required to exalt one of their idiosyncratic judgments.

Tang proposes one remedy for this hubris: a re-articulation and a return to the humbler judicial principle of “least harm.” Justices, Tang says, need to admit that the Constitution will never be clearcut on how to handle some major modern issues, from AI to “ghost” guns to social media’s excesses. Justices, he suggests, need to affirm that many cases will be close calls on the law, where the deciding factor should be this: What result will produce the least irreparable harm to real people?

Here’s how Tang explained the “least harm” approach principle on a recent podcast:

“We might get this case wrong, so if we get it wrong, which side would be able to fix our mistake more easily? Let’s vote against them. That way we can ensure we’re doing the least harm possible by leaving meaningful options in the hands of the actual people or groups that are affected.”

It’s a nice thought, with which I agree, but to me it doesn’t seem either likely or major enough to curb the problems Tang so ably describes.

I also like that Tang, who obviously knows this stuff infinitely better than you or I, thinks Congress has the power to instruct the high court to repair a huge gap in its rules: the lack of a real, enforceable code of ethics with standards for when recusal is required. The Brennan Center for Justice, a heavyweight liberal think tank, agrees with Tang.

Good to know. Unlike Tang, though, I’d now join those who want to go further than merely demanding a code of ethics:

— Congress has expanded the court before. With trepidation, I’ll say let’s do it again – to 12 seats. That even number is odd, yes, but intentional: The possibility of a court evenly split between ideologies might promote a little more humility and compromise, while constraining overreaching.

— Let’s also say yes to term limits. What’s the right number of years? Don’t know, but it should provide enough years for someone to grow in the job, mature in judgment and create a legacy, but not so long that a justice is incapable of grasping the fresh issues each rising age presents.

— Finally, in line with Tang’s ideal of “least harm,” I’d love to see – without having any clear idea how to achieve it – a consensus that the Supreme Court should never lapse into the kind of clear partisan tilt it has now, whether that tilt be rightward, as now, or leftward.  

I’d advocate a standard of “three thirds” – that is, at any given time, the court should always have a conservative contingent with roughly one third of the seats, a liberal one with the same, and an unpredictable centrist cohort with the leverage to keep its colleagues on the left and right from overreaching – and from lapsing into the kind of partisan arrogance we are now experiencing.

This would mean that, presented with a vacancy on the high court, a president would feel some obligation, or at least political pressure, to nominate someone who enhances, rather than unsettles, the “three thirds” balance.  

A useful corollary change would be an end to the absurd notion that, at confirmation hearings,  the Senate should not probe the judicial philosophy of high court nominees, nor should it ask them to explain past rulings or to comment on past high court opinions. This nonsense has enabled the Federalist Society to slip radicals like Alito onto the court under the pretense that he’d just be an “ump calling balls and strikes.”

This silly “rule” has also fomented the ugly, dispiriting quest to dig up private dirt on nominees you don’t like – e.g. Brett Kavanaugh – because the option of casting a forthright “no” vote based on a candidate’s judicial record and philosophy is for some reason frowned upon.

The foundation of the high court’s credibility is crumbling at all four corners. It’s time for an emergency renovation.

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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia