Tonight on all in. Samuel alito and Clarence Thomas are totally out of control. Outrage at the Supreme Court, it grows as samuel alito remains silent. In the senate we have gavels, there should be subpoenas going out. Tonight, should the Chief Justice have to answer for an outofcontrol court. Then as we are Rate Jury Instructions in new york i did everything right and they indicted me. George conway on the man making haley just endorsed. You think donald trump would follow the constitution if he were elected to a second term . I dont know. And hes the american doctor who shot these unbelievable Scenes Inside A Gaza Hospital and he will join me live when all in starts right now. Good evening from new york, im chris hayes, its been just over 24 hours since reporting about the New York Times revealed that a flag championed by the far right christian nationals movement, displayed widely by january 6th insurrection is, as they stormed the capital, also flew all summer long last year, over the beach house of Supreme CourtJustice Samuel alito and of course that news about that flag came days after we learned that alitos home in virginia also displayed an upside down American Flag in the weeks after the violent attack at the capital. Another symbol adopted and embraced by the stop the steal supporters. Alito responded to questions from the times and emailed a statement saying his wife, you know, the wife, hoisted the inverted flag in a dispute with their liberal neighbors, why . He doesnt say but in the days since news of this second right wing flag broke theres been no response from alito or the chief Justice John Roberts who faces a growing chorus of voices calling for him to appear before congress and explained the conduct of the members of his court. Thats in addition to calls for alito, at a minimum, to recuse himself from two hugely consequential january 6th related cases, sitting before the Supreme Court. If Justice Alito does not recuse himself from the Trump Immunity Case and the fisher january 6th case, he will do a bright irreparable damage to the Supreme Court. He definitively needs to recuse himself. Of course he should recuse himself from these cases. At a minimum, he has to recuse himself. Now all of this is happening on a day when the Supreme Court was open for business, handing down decisions on cases that it heard this spring. It was possible they might even announce some action on one of those cases that people say alito should recuse from, Donald Trumps claimed that he is immune from prosecution for his attempts to overturn the 2020 election. Thats a case that the high course headset on for months in fact check this out, its now been 164 days, nearly half a year since jack smith asked the justices to weigh in and immediately on trumps immunity claims saying basically, look, i know the Supreme Court is going to want to weigh in on this and The American Voting Public has a right to know the outcome of the case before the 2024 election and the court rejected that request and they waited, and they are slow walking their decision now. So here we are now, half a year later, its harder and harder to think that someone like sam alito whose household flew flags supporting the insurrection over not one but two of his houses is in any way qualified to be a person who makes judgments on these cases. The court did not announce a ruling today in the immunity case, who knows when and if they ever will but the six three conservative majority, majority that now boasts multiple members who flagrantly violated basic ethics coming everything from undeclared gifts to open politicking, all of which apply to all the federal judges below the Supreme Court, that majority through open the floodgates for racial gerrymandering seems. In a decision that was authored by samuel alito, the majority agreed with those republicans. They werent trying to disenfranchise voters of color, they were trying to disenfranchise democrats and whats, most of them happen to be black. See how that works . Its a decision thatll make it easier for republicans to box out voters of color as long as they can argue that the gerrymandering is based on political identity first and race second. A ruling that endangers the basic principle of one person one vote. Another active right wing steamrolling. We keep learning more about just how unaccountable they are. A justice like sam alito flies this pro insurrection is flag rightwing flag, not once but twice over his homes, the same flag flown by, and proceeded to give hundreds of thousands of dollars in gifts to facilitate those and trips in recent years. They are all part of the same club. Im just a judge. Sam alito didnt have to fly those flags to be a true conservative friend of the trumps agenda. Think about this. I mean, alito was one of the most powerful reactionaries in the country. Arguably, the most . His court opinions, speeches, appearances, he could just do that. Why would he fly the flags . He had to go and extra step to advertise, take the flag to his vacation home, its a signal from alito about who he thinks he answers to. He knows hes not supposed to do that. He knows any other judge would get in trouble. But he thinks he answers to no one. We will see if he is right. At a minimum it suggests a disturbing readiness to keep pushing past any boundaries as the movement that alito is clearly a member of looks to destroy the current american constitutional order. Senator peter welch serves on the Judiciary Committee and he joins me now. Senator, ive seen a number of folks on the right, rushing to alitos defense which is not surprising. They say this is much ado about nothing, do you think its much ado about nothing . No, the court is in crisis. Essentially you have a full on embraced by the court as a result of a timid Chief Justice, that they can do what they want beyond just making decisions that are profoundly disagreed with, but to exhibit conduct that conveys a political orientation, the two flags that you mentioned, they are very much an endorsement of the january 6th activity. You have of course, justice thomas, his wife, who On January 6th was in communication with top aides of President Trump and this is appalling. Theres two issues here. What can congress do . We have the authority to pass the white house bill, congress could impose a code of ethics. Practical reality is, with a divided senate and divided congress, we probably dont have the capacity to get that done. My view here, is weve got to start focusing on the failure of chief Justice Roberts to do the job that a Chief Justice has. And that is two things, profoundly, one is to Build Consensus, and the second, is to impose standards, collectively, that protect the integrity and the reputation of the court. And you have the timid leadership here looking the other way, and one last point, when we had the brown versus board of educations decision, 1954 that ended separate but equal, extraordinarily consequential decision, very divisive, it was going to be reacted to in the south by the court of nine justices, some republicans, some democrats, it was a unanimous decision and you didnt have justices fly upside down flags when they made the decision. Congress can do it and try but we will have the partisan fight, chief Justice Roberts has got to accept the burden of responsibility that other Chief Justices have embraced and that is Build Consensus and demand ethical standards. Okay but ive heard the notion that, i dont even know what the constitutional status of this is although i think in the courts recent jurors prudence is in support of subpoenas but i mean, can you invite Justice Roberts to come before the committee and explain himself . It seems like somebody should do some explaining there. We are just going to hide and let this wash over and no one can tell us to do anything even though we are a coequal branch of government, it seems a little suspect to me. Chief Justice Roberts owes the congress and the American People an explanation about what is going on. And senator durbin invited him earlier when some of the Leonard Leo Stuff came up, he rejected. We get into the Subpoena Question and the capacity to enforce that when we dont have 60 votes in the senate to do it. It is frustrating for us, but the Chief Justice in the Supreme Court, does he not have an obligation to the American People to explain why it is that the nine justices on the Supreme Court in contrast to the over 800 justices at the district and appellate courts, who are subject to enforceable ethical standards, why those nine are exempt from that, its absolutely undercutting the integrity of the court, hes failing in his responsibilities and he wont step up and do it but im all for inviting him in and letting him explain why this is okay. Center, are there broader ways that democrats and the congress should be conceptualizing a way of reordering the relationship between the branches, i think you can make a case that they have gotten a little out of whack and this has happened before and i said this last night, your colleague senator blumenthal and others, throughout american history, theres been these moments where the equilibrium between branches has to be resettled. You saw this during the new deal, you saw it in the run up to the civil war, arguably, one of the causes of the civil war, a failure to renegotiate that settlement. You saw it during world war ii to a certain extent, you saw it during the court in its own way. Do you think this is one of those moments . I absolutely do. Frankly term limits, they need term limits, they should have 18 year terms and that every president is going to have an opportunity to make two appointments to the Supreme Court, and that allows the people to decide, they decided who wants to be president , theyre picking a set of values that they see embodied in that person they select. So this in definite term, its gotten so extreme where you have extremely partisan appointees, especially on the republican side, where the hearing that validates the nomination is now before the senate Judiciary Committee, its before the leonard leo federalist society, they would have to check the box and assure them that they will overturn roe versus wade, even as they come in and tell the senate Judiciary Committee they never think of doing such a thing. Thank you very much. Thank you. I want to start with what we got from the court today it was an alito author decision from the trump majority 63 majority, girls in dissent, holding up a republican gerrymander. The through line between the flag story, the Clarence Thomas story and their wives, and what we saw today from the Supreme Court in this gerrymandering decision, the through line is that they dont want black peoples votes to count equally. Do you think that is true of Clarence Thomas . I know its true from Clarence Thomas, their idea and Clarence Thomas today wrote straight up, that he does not think the 14th Amendment and the equal protection clause of that amendment can be used to protect the Voting Rights of black people. I mean, hes not married to ginni thomas for nothing, thats what the man things, he wrote it today. Understand this, chris, when these people like alito and thomas support the insurrection, what are they really saying . They are saying that trump lost the election, but won the white vote which is true, he won the white vote by a lot, what people should probably do something about that but he won it by a lot and what alito and thomas are saying is that white vote, thats only votes that header, we should do what the white voters one and when they write these decisions like they are doing in the gerrymandering case, what they are saying is that black voters can be diluted, can have their Voting Rights taken away, simply because black voters happen to vote democrat. For a second, because you invoke thomas, he wrote a concurrence, the concurrence is an incredibly radical occurrence in which he basically says that the Landmark 1962 Baker The Car Case which is sort of the cornerstone upon which american democracy as we think of it now is built. Is wrongly decided and the implication of that is, if you are designing say the Georgia State legislature, lets say you had 50 districts, you can see atlanta gets one member and 40 Rural Counties each get their own member and that would be perfectly constitutional. But baker the car says you cant do that. Thomas says today like straight up straight up no, actually you can do that, the constitution does not for bid that. The way to explain it is that thomas says the 14th Amendment can never be used and the 15th amendment, he throws shade at that, too. It can never be used to protect Voting Rights and alito says it can be used im going to create a situation where you can never meet the burden of proof so alito sets the bar so high that no plaintiffs will ever be able to reach it because he disregards the facts of the case remember, folks and this is so important when it comes to South Carolina, a District Court in South Carolina said that their district was unconstitutionally racist. Thats not me saying it, that is a its not commentators. And alito says we are not going to Pay Attention to that evidence we are going to do this on our own steam. Thats the substance of what they found. In the broader context to me is like, the question of What American Democracy is and who gets to participate in it and i want to ask you about what your reaction to the second flag story was because the first one was jarring and galling and the second one was less surprising because its like corsi the rightwinger but the thing that struck me is why are you doing it, what does it say, you dont have to do it, you are affirmatively doing it. Alito is in a straight up who gonna check me boo phase of his life. Hes looking and saying, come at me, bro because you are weak and you wont do anything. And alito is right, hes acting the way hes acting because he knows democrats lack the strength to stop him and he shoving it in peoples faces at this point. When you were asking, you asked at the top, its a great question, the senator asked, what will john roberts do, what can you do, folks, john roberts has spoken with a clear voice on this and that voices, i dont care. We are talking about a Voting Rights decision that came out today. Authored by alito that john roberts did not have to assign the case to alito knowing that alito was going to let his proverbial freak flag fly. But then why does he release the opinion today . Court still has six weeks left. If you are at all ashamed of what alito is doing, if you are roberts, you take that decision and you stick it in a drawer for a couple of weeks, hoping the story blows over but john roberts doesnt care. You think that was signaling . Absolutely. You know who else thought it was signaling, elena kagan, the second line was Something Like the majoritys decision is upside down. Using the upside down methodology. That was not an accident. 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