Alito can’t save Trump from sentencing. He just made the Supreme Court’s credibility issue worse

The U.S. Supreme Court has a mounting credibility problem with the American public — and Justice Samuel Alito isn’t helping. Why should he care? Who will make him?

On Tuesday, just hours before Donald Trump’s legal team asked the U.S. Supreme Court to intervene and pause his sentencing today in the New York case involving hush money payments to porn star Stormy Daniels, the president-elect and the conservative justice talked on the phone.

This is highly unusual. And while Alito told ABC News that they only discussed one of his former law clerks who applied for a job with the incoming administration, there’s no actual reason for Trump himself to be conducting a reference check for a staff position. (As Slate observed, the former clerk worked for Alito more than a decade ago, and also served as a chief of staff to attorney general Bill Barr four years ago; Trump and Alito had no need for a call to vouch for his bona fides.)

Let’s say Alito merely sang the praises of his clerk, and Trump – who has suggested somehow disciplined himself and asked only specific questions about the applicants’ qualifications, this doesn’t pass the most basic smell test. 

Put aside for a moment that the gilded career path from Alito’s chambers into the Trump administration exemplifies why majorities of Americans understand the Roberts court and its decisions as another extension of partisan politics, not law.  

Alito’s entire job is measured judgment. It shouldn’t be asking too much for him to exercise common sense – especially when the court’s standing is at its lowest point ever with the American people. 

Yet again and again, as the conservative justice accepts luxury vacations from right-wing donors and grants interviews to lawyers with cases pending before the court, Alito fails to meet even that simplest standard. By now, it’s hard to interpret as anything other than a justice’s contemptuous refusal to be held to any rules at all.

In 2008, Alito joined hedge fund billionaire Paul Singer, a leading funder of the conservative legal movement who has invested at least $80 million in right-wing political entities, on an opulent Alaska fishing retreat. The group’s private jet flight has been valued at $100,000 each way. They caught salmon during the day, then feasted on multi-course dinners featuring Kobe beef filet and Alaskan king crab legs, and consumed $1,000 bottles of wine into the evening.

Federal law requires justices to publicly disclose most gifts; private airfare would certainly be among them. Alito did not include any of this on his financial disclosure forms – until, that is, ProPublica discovered the trip 15 years later. In the Wall Street Journal, Alito brushed aside any conflict of interest, suggesting that if he had not taken the private flight, his seat “would have otherwise been vacant.”

Then, between the Alaskan getaway and his grudging disclosure, ProPublica counted at least 10 cases where Singer had issues before the court. That included a 2014 dispute between Singer’s hedge fund and the country of Argentina, which the court decided in Singer’s favor to the tune of $2.4 billion. That’s a fine return on a private flight and some fancy wine. Alito did not recuse himself and joined the majority decision. 

In 2023, Alito sat for four hours of interviews for the Wall Street Journal, in a late July feature that dismissed the Alaska revelations as a “hit piece” and instead fluffed the justice as “the Supreme Court’s plain-spoken defender” and an “important justice” with a “distinctive interpretive method that is pragmatic yet rooted in originalism and textualism.” 

In the piece, Alito, incorrectly but without pushback, argued that “no provision in the Constitution gives (Congress) the authority to regulate the Supreme Court – period.” Most constitutional scholars disagree. The Constitution establishes the court. It awards Congress the power to regulate it – its budget, the building where it meets, the number of justices, their pay, its jurisdiction and the types of cases it can hear, even that a new session begins on the first Monday in October.

Also left unsaid? David B. Rivkin Jr., one of the interview’s two co-authors, is a well-known Federalist Society and conservative lawyer who has represented Leonard Leo and that very month sent a letter to a Senate committee that wanted to hear from Leo on Supreme Court ethics and his role facilitating relationships between justices and wealthy benefactors. Also, that Rivkin at that very moment was representing a couple with a novel challenge to federal tax laws that the court had agreed to hear the month before. (Alito refused calls to recuse.)

Then, after two flags linked to Donald Trump supporters – an upside down American flag “in distress” and the Appeal to Heaven flag – were spotted flown outside Alito’s home and vacation home, he again declined to recuse himself from two cases involving the Jan. 6 insurrection.

Alito, in his arrogance, wants everything both ways. He wants to enforce checks and balances without being subject to any himself. He wants to be able to act politically, fly political flags, and associate with partisans and wealthy donors while still insisting on his own neutrality. And he is part of a court that has been handpicked by the Federalist Society and a conservative legal movement for the manifest purpose of pushing the judiciary rightward, but in its triumphant moment wants to insist that the court is doing pure law and not politics. 

Then, when he works on behalf of the same conservative career network that elevated Alito to the court and vetted Trump’s three selections, and holds private conversations with Trump the same day the president-elect looked to the conservative supermajority he helped create for help evading his own conviction, he expects the public to shrug and look away. (Chief Justice John Roberts refused to answer questions about court ethics before the U.S. Senate because he said it would be inappropriate, but Alito can boost his staff’s career prospects directly to the president.) While they enrich themselves and please their political patrons, we must pretend that they are neutral arbiters of law. When the chief justice even deigns to address the crisis he and his colleagues have created, they look everywhere except at their own behavior. They delegitimize themselves, then call talk of their legitimacy dangerous. Trump suggests it should even be criminal. 

This is imperious nonsense. Americans know it. Confidence in the judiciary has plummeted over the last four years, to record lows, across party lines, and at such speed that it can only be best compared to the collapse of trust experienced in dictatorships and banana republics. An unelected, conservative supermajority, with lifetime appointments, no ethics code, no accountability and even less self-awareness make the rules for us but abide by none themselves.

Their law is the law of the fifth-grade playground. Because they say so. Because they can.