. >>> HI, EVERYBODY. IT'S FRIDAY. WE MADE IT AND THERE'S BIG NEWS AT 4:00 IN NEW YORK, WITH NO LESS THAN THE FATE OF OUR DEMOCRACY AT STAKE, THE NINE JUSTICES OF THE UNITED STATES SUPREME COURT HOLD IN THEIR HANDS THE POWER TO FOREVER ALTER THE TRAJECTORY OF OUR COUNTRY. HOW THEY RULE ON CASES HAVING TO DO WITH JANUARY 6th, VIOLENT ATTEMPT TO DISRUPT THE TRANSFER OF POWER, WILL ECHO FOR GENERATIONS. SO NOT ONLY IS IT REASONABLE FOR US TO EXPECT THOSE NINE HUMAN BEINGS TO GO ABOUT THEIR PROCESS IMPARTIALLY, IT'S VITAL THAT THEY ARE SEEN AND PERCEIVED AS BEING IMPARTIAL APPEARANCE. THE MERE APPEARANCE OF BIAS COULD STRAIN OUR TRUST IN AN HONEST RESULT FOR THESE CASES, WHICH IS WHY TODAY'S NEWS ISN'T JUST DISTURBING, IT'S SCARY. "THE NEW YORK TIMES" CITES PHOTOS AND INTERVIEWS WITH NEIGHBORS IN REPORTING THAT IN 2021, DAYS BEFORE PRESIDENT JOE BIDEN'S INAUGURATION AS PRESIDENT, DAYS AFTER THE DEADLY ATTACK ON THE UNITED STATES CAPITOL OF JANUARY 6th, NEIGHBORS OF CONSERVATIVE JUSTICE SAMUEL ALITO NOTICED SOMETHING ON HIS LAWN, AN UPSIDE DOWN AMERICAN FLAG, A SYMBOL COMMONLY USED IN THOSE DAYS BY TRUMP SUPPORTERS WHO FALSELY SUGGESTED THE ELECTION WAS STOLEN, A SYMBOL OF STOP THE STEAL IF YOU WILL. THAT FLAG FLEW IN THE ALITO'S YARD, THE FRONT YARD, AS HE AND HIS FELLOW JUSTICES WERE CONTENDING WITH WHETHER TO HEAR A 2020 ELECTION CASE. AN ARGUMENT ON WHICH ALITO WOULD FIND HIMSELF ON THE LOSING END. IN RESPONSE TO THE "NEW YORK TIMES" SEEKING RESPONSES, ALITO PROVIDED AN E-MAILED STATEMENT, QUOTE "I HAD NO INVOLVEMENT WHATSOEVER IN THE FLYING OF THE FLAG. IT WAS BRIEFLY PLACED BY," WAIT FOR IT, MRS. ALITO," IN RESPONSE TO A NEIGHBOR'S USE OF OBJECTIONABLE LANGUAGE ON YARD SIGNS." HE BLAMED HIS WIFE. EVEN IF ONE ACCEPTS THAT AT FACE VALUE, WE SHOULD ASK OURSELVES, DID YOU DO ANYTHING TO ALLEVIATE THE PERCEPTION OF BIAS THAT AN ANTI-TRUMP LAWN SIGN, A MEAN NEIGHBOR, WAS SO PERSONALLY INSULTING TO MRS. ALITO THAT ONLY RECOURSE THEY HAD AS A SUPREME COURT JUSTICE AND THAT JUSTICE'S WIFE, WAS TO FLY THE STOP THE STEAL SYMBOL? BRANDISHED BY SOME JANUARY 6th RIOTERS WHO ATTACKED THE CAPITOL ONE WEEK BEFORE THE A WIDELY TELEVISED INSURRECTION? AGAIN, WITH NOT ONE, BUT TWO JANUARY 6th RELATED CASES LOOMING STILL, THE FIRST ON PRESIDENTIAL IMMUNITY, THE OTHER ON THE FATE OF A STATUTE USED TO SERVE FELONY OBSTRUCTION CHARGES ON HUNDREDS WHO ATTACKED THE CAPITOL THE SUPREME COURT MUST CONSIDER HOW FAR THEIR NEW CODE OF CONDUCT GOES AND WHO IT APPLIES TO. QUOTE, A JUSTICE SHOULD DISQUALIFY HIMSELF OR HERSELF IN A FLOWING WHICH THE JUSTICE'S IMPARTIALITY MIGHT REASONABLY BE QUESTIONED. THAT IS WHERE AN UNBIASED AND REASONABLE PERSON WHO IS AWARE OF ALL RELEVANT CIRCUMSTANCES WOULD DOUBT THAT THE JUSTICE COULD FAIRLY DISCHARGE HIS OR HER DUTIES. RESPONSE TO THE "NEW YORK TIMES" REPORT, SENATOR DICK DURBIN, CHAIR OF THE SENATE JUDICIARY COMMITTEE CALLED ON ALITO TO RECUSE HIMSELF FROM CASES RELATED TO THE INSURRECTION. FOR THE COURT TO ADOPT A BINDING CODE OF ETHICS. ANOTHER REMINDER, ANOTHER MEMBER OF THAT COMMITTEE, SENATOR RICHARD BLUMENTHAL WHO WILL BE OUR GUEST IN A FEW MINUTES, ECHOED THAT SENTIMENT THIS MORNING ON "MORNING JOE." >> JUSTICE ALITO SHOULD NOT SIT ON ANY OF THESE CASES INVOLVING DONALD TRUMP AND RECUSE HIMSELF AND HERE'S THE CHALLENGE TO CHIEF JUSTICE ROBERTS, THE UNITED STATES SUPREME COURT'S CREDIBILITY IS PLUMMETING. >> ALL-TIME LOW. >> COMPLETELY. >> LOWER THAN PERHAPS EVEN THE UNITED STATES CONGRESS, AND THAT'S SAYING SOMETHING. AND IT IS DUE TO THE SUPREME COURT'S OWN SELF-INFLICTED WOUNDS. ALITO AND THOMAS DIRECTLY INVOLVED IN THE JANUARY 6th INSURRECTION. NOW THEY'RE GOING TO SIT ON CASES INVOLVING PIVOTAL LEGAL QUESTIONS. ABSOLUTELY UNTHINKABLE. >> AND HERE WE ARE, SO HOW THE SUPREME COURT WILL ULTIMATELY COME DOWN ON THE JANUARY 6th CASES IS UNCLEAR. NOBODY KNOWS. EVEN NOW BEFORE THE JUSTICES HAVE MADE PUBLIC THEIR DECISIONS, THE AMERICAN PEOPLE HAVE A LEGITIMATE REASON TO BE CONCERNED, TO HAVE DOUBT, THAT THE COURT WILL MAKE A DECISION IN AN ENTIRELY IMPARTIAL MANNER. IT'S WHERE WE START WITH OUR EXPERTS AND FRIENDS, SENIOR EDITOR FOR SLATE AND HOST OF THE AMICUS PODCAST DAHLIA IS BACK, FORMER LEAD INVESTIGATOR FOR THE SELECT COMMITTEE TIM IS BACK, WITH US AT THE TABLE, FORMER TOP OFFICIAL AT THE DEPARTMENT OF JUSTICE, MSNBC LEGAL ANALYST ANDREW WEISSMANN IS HERE. DAHLIA, THIS IS A STORY THAT DOESN'T PACK A LOT OF SURPRISES WHEN IT COMES TO ALITO AND THOMAS, A STORY THAT PROPUBLICA WON A PULITZER FOR THEIR BODY OF REPORTING A STORY THAT, STOPPED ME IN MY TRACKS WHEN I SAW "THE NEW YORK TIMES" BREAK THIS AND WITH THE PHOTO THAT HAS AN IMAGE IF YOU LOVE THIS COUNTRY, IS LIKE A BODY BLOW TO SEE THE IMAGE, AND THEN AFTER I SAW THE IMAGE I READ THE STORY AND TO LEARN THAT IT FLEW OVER THE HOUSE ON THE FRONT LAWN OF ONE OF NINE HUMAN BEINGS WHO MAKE UP THE UNITED STATES SUPREME COURT, IS TO ME AN EPIC SCANDAL. >> I MEAN, I THINK IT'S SCANDAL AND WE'RE GOING TO MAKE A CATEGORY ERROR IF WE HYPER FOCUS ON THE SAM ALITO IS A MEAN, BITTER MAN, WHO GETS IN FIGHTS WITH HIS NEIGHBORS. IT TAKES AWAY FROM THE INSTITUTIONAL STORY THAT WE HAVE FOCUSED ON THAT SENATOR BLUMENTHAL FOCUSED ON, WHICH IS HOW IS IT POSSIBLE THAT THERE IS A SUPREME COURT IN WHICH NOT ONE, BUT TWO JUSTICES HAVE MATERIALLY ADVANCED POSITIONS IN SUPPORT OF SOMETHING THAT LOOKS LIKE STOP THE STEAL, SOMETHING THAT LOOKS LIKE SYMPATHY FOR THE CLAIM THAT THE ELECTION WAS STOLEN. AND THAT THERE IS NO MECHANISM WHATSOEVER OTHER THAN THEIR OWN GOODWILL UNTO THEMSELVES TO STOP THEM. I THINK THAT'S WHAT'S SHOCKING ABOUT THIS STORY ISN'T SO MUCH THAT IT KIND OF LOOKS LIKE THE ALITOS SHOULD HAVE DONE WHAT THE REST OF US DO WHEN WE FIGHT WITH OUR NEIGHBORS, TRIM THEIR ROSE BUSHES IN THE DARK OF NIGHT, BUT THAT'S NOT THE STORY. THE STORY IS, THAT YET AGAIN, WE HAVE TWO JUSTICES WHO ARE SITTING ON CASES, ONE ALREADY DECIDED, ANDERSON, THE COLORADO CASE, TWO PENDING, AS YOU SAID, AND THE ONLY MECHANISM THAT THE PUBLIC HAS IS TO BE ANGRY AND UPSET? THAT JUST CAN'T BE THE END OF THE STORY. >> I MEAN, ANDREW WEISSMANN, THAT HE'S A BAD NEIGHBOR IS THE LEAST SHOCKING PART OF THE STORY, RIGHT, AND A FIGHT WITH A NEIGHBOR, THAT YOUR INSTINCT IS TO SIDE WITH THE INSURRECTION IS WRONG. >> FIRST OF ALL LEAVE ASIDE THE STORY AGAIN, I WOULD SAY IT'S LIKE THE RESPONSES TO THE PROPUBLICA STUFF. THE RESPONSES MADE YOU THINK THESE ARE THE PEOPLE WHO ARE DECIDING TO OVERTURN ROE VERSUS WADE. TO DAHLIA'S POINT IT'S THE RIGHT ONE, IF YOU WANT TO CONNECT THE IMAGE THAT YOU SAW, YOU DON'T HAVE TO LOOK FAR. IF YOU LOOK AT WHAT ALITO SAID IN THE IMMUNITY ARGUMENT, THE ARGUMENT WAS SHOULD A PRESIDENT BE SUBJECT TO THE CRIMINAL LAWS, AND IT WAS UNBELIEVABLE, SOMEBODY WHO IS A U.S. ATTORNEY, NOW SITTING IN THE SUPREME COURT OF THE UNITED STATES, TOOK THE POSITION, WE CANNOT TRUST DOJ, WE CANNOT TRUST A GRAND JURY OF CITIZENS, WE CANNOT TRUST THE CRIMINAL JUSTICE SYSTEM, WHICH BY THE WAY, HE OVERSEES THE CONSTITUTIONAL LIMITS ON WHAT THE GOVERNMENT CAN DO, WE CAN'T TRUST THAT AND THAT'S WHY A PRESIDENT SHOULD BE IMMUNE. YOU TIE THAT NOW TO WHAT YOU'RE SEEING. THIS IS A DIRECT LINE IN TERMS OF WHAT HE ESPOUSED THE THE ORAL ARGUMENT TO THE IMAGE YOU'RE SEEING. THIS IS NOT LIKE HIS WIFE HAPPENED TO BE DOING SOMETHING BECAUSE YOU CAN TIE IT TO HIS RHETORIC AND POSITIONS IN THE COURT. >> MAYBE TALK ABOUT THIS IMAGE. I SAW IT AND IMMEDIATELY REMEMBERED IT BECAUSE I SAT HERE AND ANCHORED HOURS OF LIVE TELEVISION ON JANUARY 6th AND I WAS STARING AT WHAT THE INSURRECTIONISTS WERE CARRYING, A LOT CARRYING TRUMP FLAGS, BUT A LOT OF THEM CARRIED THIS IMAGE OF THE FLAG UPSIDE DOWN. THERE IT IS. I HAD TO GOOGLE IT ON THAT DAY. I DIDN'T KNOW WHAT THAT MEANT. THIS IS IN THE VIEW OF THE INSURRECTIONISTS, THIS WAS THEIR SYMBOL THAT DAY. THIS WAS THE SYMBOL, MRS. ALITO, ACCORDING TO JUSTICE ALITO, IF YOU EVEN BELIEVE HIM AT THIS POINT, DECIDED TO HANG ON HER FRONT LAWN. >> RIGHT. ABSOLUTELY. IT IS ONE OF THE SYMBOLS A LOT OF RIOTERS USED TO DEMONSTRATE THEIR BELIEF THAT SYSTEM WAS INVERTED, THAT THE OUTCOME WAS INVERTED. THE SYMBOLISM HERE IS THAT AMERICAN IDEALS HAD BEEN TURNED UPSIDE DOWN THAT THE WRONG PERSON IS BEING INSTALLED AS PRESIDENT BECAUSE ALL OF THIS FRAUD HAS SOMEHOW GONE UNDETECTED, COMPLETELY BOGUS, FACTUALLY NO FOUNDATION FOR THAT ARGUMENT, BUT THAT'S WHAT THIS SYMBOL OF THE INVERTED FLAG MEANS, AND IT WAS ON DISPLAY QUITE PROMINENTLY AT THE CAPITOL ON JANUARY 6th, WHICH MEANS THERE'S NO QUESTION, THAT WHOEVER MADE THE DECISION TO PUT THAT FLAG UP IN FRONT OF JUSTICE ALITO'S HOUSE, 11 DAYS LATER WAS WILLINGLY ASSOCIATING WITH THE INSURRECTIONISTS WITH THIS NOTION THAT OUTCOME WAS SOMEHOW INVERTED. TO ME IT DOESN'T MATTER WHAT MADE THE DECISION. IT RAISES A VERY CLEAR APPEARANCE ISSUE. RIGHT. IF A SUPREME COURT JUSTICE, WHO IS MAKING DECISIONS THAT BEAR DIRECTLY UPON THE LEGALITY OF WHAT HAPPENED ON JANUARY 6th, THE SOLEMNITY OF OUR DEMOCRACY AND THE ELECTION, HAS EVIDENCE THAT THAT BELIEF WITH THAT SYMBOL AT THE VERY LEAST RAISES AN ISSUE OF APPEARANCE, OF BIAS, OF CONFLICT OF IMPRO PRY TER
