The low side of the high court

June is notable for many things: National Safety Month, Great Outdoors Month, National Dairy Month, LGBTQ+ Pride Month, Father’s Day, Flag Day, World Environment Day, Juneteenth, the D-Day anniversary, and the arrival of the summer solstice.

June, however, is notable (or should be) for a far greater reason: It is the month in which America is defined for the months and years that follow it, because June is when the U.S. Supreme Court issues one major decision after another. This year, the court’s June 2024 docket began with some 30 decisions pending, covering a range of such significant issues as abortion access, gun rights, federal regulatory authority, and much more.

One decision in particular could substantially affect this November’s election and reshape the powers of a president of the United States.

Supreme Court decisions have to be respected even if they are disliked. However, if the Court rules in Donald J. Trump v. the United States that presidents cannot be held accountable for crimes committed while in office, that decision will deserve no respect if the majority included Associate Justices Samuel Alito and Clarence Thomas. Both of them should be barred from voting on this for moral and ethical reasons. As will be seen further down, Jewish law has serious advice to about this.

Here are some of the most consequential cases yet to be decided:

Two cases involve gun rights. Garland v. Cargill challenges a Trump administration ban on the use of bump stocks that turn automatic weapons into machine guns, which are illegal here. The bump stock ban was issued in 2017 following one of the deadliest mass shootings in U.S. history. Within a few short minutes, 58 people in Las Vegas were killed, and hundreds of others were injured by guns with bump stocks attached.

The second, perhaps more important, case is United States v. Rahimi. It challenges a 2022 federal law that forbids anyone who is subject to a domestic violence prevention order or who has been convicted of domestic violence from owning a gun. A decision upending that provision certainly will have broad implications for gun control laws, particularly those designed to protect victims of domestic abuse.

Abortions are on the decision docket in two cases: FDA v. Alliance for Hippocratic Medicine and Idaho v. U.S. The latter case involves a federal law that requires emergency room care for life-threatening cases, including requiring ER doctors to terminate life-threatening pregnancies even in states with strict abortion bans. A decision in favor of Alliance would effectively deny or severely limit a woman’s access to the abortion drug mifepristone, which is used in up to half of abortions in the United States.

The prosecutions of January 6th rioters also are at issue. One case, Fischer v. U.S., challenges the basis for those prosecutions. Defendants were charged under a 2002 law that focused on destroying evidence in cases under federal investigation. In order to prosecute January 6th rioters, the federal government broadly interpreted that law to include a wide range of obstructive behaviors that could interfere with official proceedings of any kind.

However, the big January 6th case is Donald J. Trump v. United States. At issue is whether presidents can be held accountable for crimes committed while in office. Trump is accused, among other things, of trying to overturn the results of the 2020 election while still in office and of inciting the January 6th insurrectionists at the Capitol.

Not only will a decision in this case affect current federal and state prosecutions of Trump and others, but it will also have significant implications for the limits of presidential immunity and accountability from this point on. A ruling in Trump’s favor would mean that any president is immune from criminal prosecution for acts performed while he or she was in office.

And that brings us to Associate Justices Alito and Thomas.

In Thomas’s case, it is a matter of guilt by association, but it is a very significant association because it involves his wife. In the wake of the 2020 election, Virginia “Ginni” Thomas became deeply involved in efforts to overturn what she called in a text message to White House Chief of Staff Mark Meadows “the greatest Heist of our History.” She even attended Trump’s “Stop the Steal” rally on January 6th.

One standout text message from her to Meadows was sent after Meadows assured her the fight would continue. She was overjoyed. “Thank you!!” she texted back. “I needed that! This plus a conversation with my best friend just now….I will try to keep holding on.”

The question is whether Ginni Thomas considers her husband to be her “best friend” and, if so, what was said in that conversation that so elated her. As she told an interviewer, however, “Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”

True or not, it is hard to imagine what life would be like at home if Ginni’s husband voted to deny Trump’s immunity claim.

Alito is using his wife to cover for acts that appear to support the January 6th insurrection on the one hand and to support officially turning the United States into a Christian nation on the other. They “appear” to do so because only Alito and his wife know what they were thinking when these acts were committed, and which of them it was who committed them.

At issue here are two flags and how they were flown. An upside-down American flag flew over the Alito home in Alexandria, Va., for at least several days before President Biden’s inauguration in January 2021. Because flags flown that way are a visible version of an S.O.S. distress message, groups on the right and left have used them to send their own S.O.S. distress calls. After the 2020 election, it became the banner for Trump’s “Stop the Steal” movement because “our nation is in distress,” as one poster put it on a Trump-supporting website. The poster said Congress must be induced not to confirm Biden’s Electoral College win. “If you cannot go to the DC rally then you must do your duty and show your support for our president by flying the flag upside down!!!!”

Many upside-down flags were prominently displayed at the Capitol and throughout the nation before, during, and on January 6th.

Also prominently displayed at the Capitol that day was a resurrected relic of the Revolutionary War — the Pine Tree Flag, also known as the Appeal to Heaven flag, that George Washington in 1775 ordered to be flown by Continental Army schooners. Today, the flag symbolizes both “Stop the Steal” and Christian nationalism. Last summer, an Appeal to Heaven flag flew over Alito’s summer home on Long Beach Island in New Jersey.

Alito insists his wife flew both flags.

Thomas and Alito are two of the six conservative justices on the Supreme Court. Any decision in a January 6th-related case, the presidential immunity case, or a case involving the separation of church and state, would be forever tainted unless these two justices recused themselves from it. Both have refused to do so, however.

Jewish law has much to say about how a judge should exercise his or her responsibilities.

Deuteronomy 16:19 warns judges not to judge unfairly, show partiality to either side in a legal dispute, or take bribes. Our Sages of Blessed Memory understood this more broadly. To them, a judge must never even appear to do such things. The Babylonian Talmud tractate Ketubot (105b) offers several seemingly ludicrous examples to demonstrate how seriously our Sages viewed this.

In one instance, the outstanding third-century Babylonian Sage Samuel had difficulty boarding a ferry. A man unknown to him offered him a helping hand. When Samuel learned that the man was to be a litigant whose case he was to adjudicate, he recused himself merely because the man had helped him board the ferry.

A feather dropped onto the fourth-century Babylonian Sage Amemar’s head while presiding over several cases. A man rushed up to remove the feather. When Amemar heard that the man was a litigant in an upcoming case, he recused himself.

The exilarch Mar Ukva disqualified himself because a man covered up some saliva that was on the table before him.

The Land of Israel Sage Rabbi Yishmael ben Rabbi Yosei did the same because a man who delivered a basket of fruit to him at his home every Friday afternoon once brought the basket to him in court on Thursday. Because the man was a litigant, Rabbi Yishmael refused to accept the fruit and recused himself from hearing his case.

In his Mishneh Torah: The Laws of the Sanhedrin (2:7), Maimonides, the Rambam, said judges must “love the truth, hate violence, and keep far from anything that tastes of unrighteousness.” Elsewhere, he argued that a judge “should not force himself to be among the judges” in cases where his or her decision is likely to “become suspect.” (See his Introduction to the Mishnah 15.) If Rambam were alive today, he would insist that Thomas and Alito recuse themselves on this basis alone.

All eyes are on the High Court this June as they are every June, but this year America waits to learn what America will be like come July 2024.

Shammai Engelmayer is rabbi of Kehillat Torat Chayim v’Chesed–a virtual congregation, and an adult education teacher in Bergen County. He is the author of eight books and the winner of 10 awards for his commentaries. His website is www.shammai.org.

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