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JUDICIAL RECKONING: OCASIO-CORTEZ TAKES ON THOMAS AND ALITO  
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Thom Hartmann
July 12, 2024
The Hartmann Report
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_ Ocasio-Cortez’s articles of impeachment against the rogue
justices probably won’t remove them. But history suggests it might
help tame the court in other ways. _

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Article 3 of the Constitution, which defines the roles and powers of
the court system, says
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“The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behaviour.”

Congresswoman Alexandria Ocasio-Cortez is taking the Framers at their
word; this week, she introduced articles of impeachment
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both Clarence Thomas and Samuel Alito.

While the Republicans on this court have engaged in a decades-long
steady torrent of corruption—from Chief Justice John Roberts’s
wife making over $10 million hustling lawyers into law firms that
practice before the court to Clarence Thomas’s million-dollar
vacations and mother’s rent-free life, Samuel Alito’s paid
speeches and luxury vacations with billionaires, Neil Gorsuch’s and
Amy Coney Barrett’s fealty to the fossil fuel industry that his
mother and her father served, and finally to Brett Kavanaugh’s
alleged gambling debts—Congress has so far overlooked its obligation
to, as Article 3, Section 2 says, “regulate” the Supreme Court.

AOC’s impeachment resolution calls out the two most egregious
examples, Thomas and Alito, for failing to disclose gifts from
billionaires with issues before the court. She also nails them both
for refusing to recuse themselves from cases where they have obvious
conflicts, like Thomas’s wife participating in January 6 and
Alito’s flag-waving support of the effort to end our democracy.

Most recently, we’ve just discovered that
billionaire-with-interests-before-the-court Harlan Crow even paid for
the Thomases to take a luxury, all-expenses-paid trip to Putin’s
hometown
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Any other federal judge in America would have been taken off the bench
had he or she behaved the way these two have.

Right-wing media is laughing at Ocasio-Cortez, pointing out that since
Republicans control both the House Judiciary Committee and the entire
House itself, her impeachment resolution won’t even make it out of
committee. They shouldn’t be so sure of themselves.

First, there’s a very real possibility—in part because of this
court’s extremist rulings, particularly overturning _Roe v.
Wade_—that the House will fall to Democratic hands next January and
her effort could have a new, albeit uphill, life.

But second, and more important, it’s possible that her highlighting
the corruption of at least two Republicans on the court may cause some
of the others—particularly Roberts, Barrett, and Kavanaugh—to
become more moderate in their rulings going forward.

The last time the Supreme Court experienced such a crisis of
confidence with the American people was in the 1935–1937 era, and
the way it resolved is fascinating.

Back then, four of the justices—Pierce Butler, James Clark
McReynolds, George Sutherland, and Willis Van Devanter—were
collectively known as the Four Horsemen. They were invariably joined
by one of the other justices—most frequently Owen Roberts—to
strike down President Franklin D. Roosevelt’s popular New Deal
legislation that attempted to address unemployment and poverty.

The Four Horseman claimed to be originalists or “strict
constructionists_” _who somehow could read the Founders’ intent
from the Constitution, disregarding the historical reality that the
Founders were not even remotely of a single mind.

For 40 years during the preceding _Lochner_ era, the court had
struck down dozens of state laws protecting workers, including women
and children. During the period between 1897 and 1929, the court was
ruling largely with the booming industrialist economy, and its
conservative members saw the labor movement as disruptive rather than
positive. However, with the onset of the Republican Great Depression,
these industrialists lost popular support—but the Supreme Court had
not caught up with popular opinion.

In 1935, the court ruled that both the Agricultural Adjustment Act and
the National Industrial Recovery Act were unconstitutional. The
rulings gutted a large piece of Roosevelt’s New Deal legislation.

Shortly before Roosevelt was reelected in 1936, the court went even
further and struck down a New York state law that established a
minimum wage for women and children, in _Morehead v. New York ex rel.
Tipaldo__._ The pendulum of popular opinion swung against the court
almost overnight.

In 1937, the National Labor Relations Act and the Social Security Act
were on their way to the court. Considering how the Four Horsemen had
ruled during FDR’s first term, Roosevelt knew that he needed to do
something or risk losing both pieces of legislation along with the
collapse of his entire New Deal agenda.

With the New Deal on the line, Roosevelt—much like AOC today—went
on the attack. On February 5, 1937, just months after his landslide
reelection, he announced his plan: He asked Congress for the authority
to appoint one new justice for each justice then on the bench over 70
years old.

In 1937, the average life expectancy for men in the United States was
only [[link removed]] 58
years. The average age of the Supreme Court justices at the time was
71 years old, and_ six _of the justices were 70 or older. A book
mocking the court, called
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Nine Old Men, “_was rapidly moving up the bestseller lists.”

FDR directly called into question the “capacity of the judges
themselves” to dispose of the growing number of cases facing federal
courts. He came up with a plan that would have immediately given him
six appointments to the Supreme Court and up to 44 appointments for
federal lower courts. Roosevelt argued that “a constant and
systematic addition of younger blood will vitalize the courts.”

On March 9, 1937, Roosevelt told the nation that the court was ruling
not just against himself and Congress but against the will of the
American people, themselves. “The courts,” Roosevelt boomed
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on the ability of the elected Congress to protect us against
catastrophe by meeting squarely our modern social and economic
conditions.” Roosevelt’s critics were aghast at his plans. They
claimed he was trying the “pack the court” with justices who would
simply be his yes-men.

Congress never voted on the plan. It’s unclear whether it would have
succeeded, or if a more moderate plan that would have given him only
two or three justices might have succeeded. Historians still debate
the issue. But the point is that the need for it vanished virtually
overnight. It ended with a decision on the minimum wage, a crucial
component of the New Deal.

On March 29, 1937, a Washington state minimum-wage law came before the
court in _West Coast Hotel Co. v. Parrish_. The law in question was
nearly identical to a New York state law that that had come before the
court a year earlier. But this time, Justice Roberts abandoned the
Four Horsemen to uphold Washington state’s minimum-wage law in a
5–4 decision.

In a series of 5–4 decisions two weeks later, the court upheld the
National Labor Relations Act as constitutional. The ruling was
astonishing, and Roberts was the justice who’d swung the court to
the left. Less than two months later, the court declared that Social
Security was constitutional.

Roberts’s about-face in _West Coast Hotel_ was referred to at the
time as “the switch in time that saved nine” (the court’s
reputation, that is). And it’s possible—although not definitively
probable—that we could see a similar dynamic at play today.

As we saw with the two efforts to impeach former President Trump, any
effort to remove a high official from office by that route is a long
shot. Only one Supreme Court justice has ever been impeached—Samuel
Chase in 1805—and he was notoriously corrupt (and often drunk).

But as FDR’s successful effort to take on the Republicans on the
court showed, sometimes the very process of highlighting their
unpopularity and inappropriate judgment can lead to a positive change.
The country owes Representative Ocasio-Cortez a big thanks and an
overwhelming reelection this fall.

_THOM HARTMANN is a New York Times bestselling, four-times Project
Censored Award-winning author, and host of THE THOM HARTMANN PROGRAM,
which has been broadcasting live nationwide for 20 years on AM and FM
radio, SiriusXM satellite, and as video on Free Speech TV, Facebook
YouTube, and Twitter/X._

_The Hartmann Report [[link removed]] is a
reader-supported publication. To receive new posts and support my
daily efforts to hold power to account in America, please consider
becoming a free or paid subscriber._

* AOC
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* SCOTUS
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* Clarence Thomas
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* Samuel Alito
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* impeachment
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