>>> CHIEF JUSTICE JOHN ROBERTS MAY WANT TO ASK HIMSELF HOW MANY INSURRECTIONIST FLAGS ARE TOO MANY FOR ONE OF HIS JUSTICES TO FLY. JUSTICE SAMUEL ALITO SEEMS TO THINK FLYING INSURRECTIONIST FLAGS ARE OKAY, AS LONG AS YOU CAN BLAME IT ON YOUR WIFE. IRONICALLY IT MAY BE THE ONLY SPACE IN ALITO'S AMERICA A WOMAN'S AUTONOMY IS RESPECTED. HE IS THE AUTHOR OF THE OPINION THAT OVERTURNED ROE V. WADE. THE PUBLIC REVELATION OF THE FLAG FLYING OVER HIS RESIDENCE WERE FLAGS CARRIED BY JANUARY 6th RIOTERS AND PROMPTED CALLS FOR HIS RECUSAL FROM TWO JANUARY 6th CASES. THIS IS THE LATEST ETHICS SCANDAL TO ROCK A COURT FACING A CRISIS OF LEGITIMACY AMID A HISTORIC LOSS OF PUBLIC FAITH. THE NATION'S HIGHEST COURT LONG REVERED FOR QUIETLY STEERING JURISTS TOWARD INCREASINGLY RESEMBLES A REALITY SHOW BUT IT IS PROBABLY NOT ALL THAT SURPRISING OUR INSTITUTIONS WITH MAGA EXTREMISTS ARE BEGINNING TO MIRROR THE CHAOTIC WORLD OF DONALD TRUMP, THE TWICE IMPEACHED, NOW CONVICTED FORMER APPRENTICE HOST. FLAG GAIT FOLLOWS A STRING OF CONTROVERSIES CALLING INTO QUESTION THE COURT'S IMPARTIALITY INCLUDING REVELATIONS JUSTICE CLARENCE THOMAS AND SAMUEL ALITO ACCEPTED LAVISH GIFTS FROM GOP MEGA-DONORS WITH BUSINESS BEFORE THE COURT. THE JUSTICES APPEAR TO BE DOING RIGHT BY THEIR CONSERVATIVE DONORS, REFUSING TO RECUSE THEMSELVES FROM CASES WHILE PRESIDING OVER LANDMARK RULINGS THAT HAVE CHIPPED AWAY AT THE CIVIL RIGHTS OF MILLIONS OF AMERICANS. FROM OVERTURNING ROE V. WADE TO CHOPPING DOWN THE ENVIRONMENTAL PROTECTION AGENCY'S PER POWER TO FIGHT CLIMATE CHANGE, THE COURT HAS LOUDLY AND UNAPOLOGETICALLY DECLARED WAR ON JUDICIAL RESTRAINT ON ITS OWN PRINCIPLE OF THE COURT FOLLOWING ITS OWN LONG ESTABLISHED PRECEDENTS. ALL OF THIS RAISES QUESTIONS ABOUT CHIEF JUSTICE ROBERTS, HIS ROLE AND WHETHER OR NOT HE HAS LOST CONTROL OVER HIS COURT. ROBERTS HAS SO FAR REFUSED TO MEET WITH MEMBERS OF THE SENATE JUDICIARY COMMITTEE TO ADDRESS THE COURT'S UNPRECEDENTED ETHICS CRISIS INSISTING THE COURT WILL POLICE ITSELF. OR AT LEAST PRETEND TO. ON TUESDAY THE SENATE MAJORITY LEADER CHUCK SCHUMER CRITICIZED ROBERT STATING, "JUSTICE ROBERTS HAS IN MY OPINION NOT LIVED UP TO HIS RESPONSIBILITY AS CHIEF JUSTICE ON ISSUE AFTER ISSUE." RECENT REMARKS FROM THE SITTING JUSTICES HAVE ONLY SERVED TO UNDERSCORE JUST HOW CHAOTIC AND UNACCOUNTABLE THIS COURT HAS BECOME UNDER ROBERTS. SPEAKING AT HARVARD UNIVERSITY, THERE ARE DAYS I HAVE COME TO MY OFFICE AFTER AN ANNOUNCEMENT OF A CASE AND CLOSED MY DOOR AND CRIED. THERE HAVE BEEN DAYS AND THERE ARE LIKELY TO BE MORE. THERE ARE MOMENTS I AM DEEPLY, DEEPLY SAD AND MOMENTS WHERE, YES, EVEN I FEEL DESPERATION. THAT IS A SITTING JUSTICE EXPERIENCE OF THE HIGHEST BENCH MARKED BY DESPERATION. THIS IS TELLING, TO SAY THE LEAST. SO, HOW MANY INSURRECTIONIST FLAGS WOULD BE ONE TOO MANY FOR A SUPREME COURT JUSTICE TO FLY? JUSTICE ROBERTS BELIEVES THAT IS NOT A CONCERN FOR THE AMERICAN PUBLIC. FOR MORE ON THIS, I AM JOINED BY A PROFESSOR OF LAW AT THE UNIVERSITY AND MSNBC LEGAL ANALYST AND COHOST OF THE STRICT SCRUTINY PODCAST. MELISSA, THANK YOU FOR JOINING US. SOME ARGUE CHIEF JUSTICE ROBERTS MAY GO DOWN AS ONE OF THE WORST CHIEF JUSTICES IN HISTORY WITH SOME LEGAL SCHOLARS EVEN CALLING FOR HIS RESIGNATION. TELL ME IF YOU THINK THESE CRITICISMS ARE FAIR, THE CRITICISMS DISTINCT FROM SOME OF THE THINGS MEMBERS OF THE COURT ARE DOING. >> THIS IS A REALLY INTERESTING QUESTION. I MEAN, THERE ARE GREAT CONTENDERS WHO WROTE THE INFAMOUS DRED SCOTT OPINION BUT I THINK THIS CHIEF JUSTICE WILL GO DOWN IN HISTORY AS THE LEAST CAPABLE ADMINISTRATOR AND THAT IS INTERESTING BECAUSE HE ACTUALLY STARTED OFF BEING QUITE A CAPABLE ADMINISTRATOR. IT IS DIFFICULT TO SEPARATE WHAT IT MEANS TO BE A JUSTICE OF THE COURT AND CHIEF JUSTICE OF THE UNITED STATES. HE'S NOT JUST A MEMBER OF THE COURT, HE IS THE CHIEF ADMINISTRATOR OF THE FEDERAL JUDICIARY SO ALL OF THESE QUESTIONS ABOUT JUDICIAL ETHICS, THIS IS RIGHT IN HIS WHEELHOUSE AND HIS REFUSAL TO DO ANYTHING ABOUT THIS COURT AND ABOUT THE LOWER FEDERAL COURTS WHERE THERE HAVE BEEN QUESTIONS ABOUT RECUSAL AND ACTS OF IMPROPRIETY AND PARTICIPATING IN CASES WHERE JUDGES HAVE A FINANCIAL INTEREST AND HE HAS DONE PRECIOUS LITTLE. WHAT HE HAS DONE IS REFUSED CONGRESS FROM WRITING STATUTES THAT MIGHT CALL THESE COURTS TO ACCOUNT. >> THIS IS AN INTERESTING POINT. HE IS THE CHIEF ADMINISTRATOR OF THE FEDERAL JUDICIARY WHICH SUGGESTS A DIFFERENT ROLE THAN MOST OF US ARE THINKING ABOUT THE CHIEF JUSTICE. HE DID SAY JUSTICES WILL POLICE THEMSELVES. THAT IS PARAPHRASING. HOW MUCH CONTROL DOES HE ACTUALLY HAVE OVER THE CONDUCT OF JUSTICES SINCE THE FLYING OF THESE FLAGS THAT MIGHT BE INSURRECTIONIST? IS IT A MATTER OF HE CAN SET CERTAIN ETHICS RULES, OR CAN HE GO TO ALITO AND SAY YOU ARE CAUSING PROBLEMS? >> YOU CAN ALWAYS GO TO AN INDIVIDUAL JUSTICE. THE REAL ISSUE HERE IS WHEN ROBERTS LOST CONTROL COMPLETELY IS WHEN THIS COURT BECAME A 6-3 CONSERVATIVE MAJORITY. THERE WAS A PERIOD OF TIME AFTER JUSTICE KENNEDY STEPPED DOWN AND ROBERTS WAS THE ABSOLUTE CENTER, THE FULCRUM UPON WHICH THIS COURT PIVOTED. THERE WERE ONLY FOUR REALLY CONSERVATIVE JUSTICES ON THE BENCH AND HE WAS THE FIFTH VOTE IF THEY WANTED A CONSERVATIVE MAJORITY AND SOMETIMES HE WENT WITH THE LIBERALS OFTEN FOR CONCERNS. WITH A 6-3 MAJORITY, THERE IS ALWAYS A FIVE PERSON CONSERVATIVE MAJORITY AND JOHN ROBERTS ISN'T NEEDED AND I THINK THAT IS NOT ONLY THE SUBSTANCE OF THE DECISIONS BUT THE WAY THIS COURT IS RUN. >> STEVE VLADECK HAS WRITTEN IT'S NOT THE ROBERTS COURT ANYMORE AND HASN'T BEEN SINCE THE DAY JUSTICE GINSBURG DIED. THE REALITY IS THAT PROBABLY BY THIS TIME IN JULY YOU WILL SEE A LOT OF PIECES ABOUT HOW THIS IS AMY CONEY BARRETT'S COURT AND HOW SHE WILL BE THE REAL DECISION THAT MATTERS. TELL ME -- INTERPRET THAT FOR ME. >> SO IT MEANS WITH A CONSERVATIVE SUPER MAJORITY, AGAIN, CHIEF JUSTICE ROBERTS ISN'T NEEDED AT ALL SO THE REAL FULCRUM OF THE COURT TURNS AROUND THOSE FROM JUSTICES, PARTICULARLY AMY CONEY BARRETT AND BRETT KAVANAUGH, WHO ARE OFTEN IN THE CENTER. IT'S NOT TO SAY THEY ARE NOT MODERATE OR CENTRIST, BUT THE COURT HAS MOVED SO FAR TO THE RIGHT BECAUSE OF THIS SHIFT IN PERSONNEL AND ADDITION OF A SIXTH JUSTICE THAT THE CHIEF JUSTICE IS REALLY OUT IN THE WIND, OUT IN THE WILDERNESS. WE ARE SEEING THAT IN NOT ONLY BIG DECISIONS WHERE THE CHIEF JUSTICE TRIED TO STEER A MIDDLE COURSE AND DIDN'T HAVE THE VOTES TO DO IT. THE FIVE CONSERVATIVES WERE LIKE, NO, WE DON'T CARE WHAT YOU SAY. THEY BASICALLY SAID THAT IN THE OPINION SO HE'S KIND OF OUT IN THE WILDERNESS AND HAS REALLY LOST THE THREAD OF THIS COURT. IT WAS INTERESTING LAST WEEK WHEN JUSTICE ALITO RESPONDED TO SENATOR DURBIN. HE WAS RESPONDING TO A LETTER SENT TO THE CHIEF JUSTICE AND HE RESPONDED BEFORE THE CHIEF JUSTICE. SORT OF AN INDICATION WE DON'T LISTEN TO THIS GUY AND YOU SHOULDN'T EITHER. >> SO WHAT CAN BE DONE ABOUT THIS? YOU AND I HAD THIS CONVERSATION AND YOU ARE SO BRILLIANT BUT I WOULD LIKE A REMARKABLY SATISFYING ANSWER ON THIS ONE AND I'M NOT SURE YOU HAVE ONE TO PROVIDE. WHAT CAN WE ACTUALLY DO TO RESTORE OUR TRUST IN THE SUPREME COURT AND FEEL IT IS A BODY THAT OPERATES FAIRLY AND IF IT POLICES ITSELF, MAKE SURE IT POLICES ITSELF WELL? >> CONGRESS CAN DEFINITELY DO THINGS. IN AN ELECTION YEAR THERE ARE MANY IN THE SENATE WHO WORRY THEIR SLIM MAJORITY WILL MAKE IT IMPOSSIBLE TO ACTUALLY DO ANYTHING RIGHT NOW BUT INDIVIDUALS WHO ARE RUNNING ME TO RUN ON THE FACT THIS IS A COURT THAT IS CHAOTIC AND OUT OF CONTROL. MORE IMPORTANTLY, VOTERS NEED TO UNDERSTAND IMPEACHMENT WAS ALWAYS A WAY TO CHECK. CONGRESS CAN IMPEACH FEDERAL JUDGES, CONVICT FEDERAL JUDGES AND REMOVE THEM FROM OFFICE, AND THEY HAVE IN THE PAST. IN THE LAST FIVE YEARS, WE HAVE SEEN THAT WHERE WE HAVE SLIM MAJORITIES IN THE SENATE, IMPEACHMENT IS REALLY A PAPER TIGER AND THAT TRICKLES OVER. IF THE CHIEF JUSTICE COULD POINT TO CONGRESS AND SAY YOU COULD BE IMPEACHED, SAMUEL ALITO, FOR DOING THIS, HE WOULD HAVE A LOT MORE PURCHASE WITH HIS COLLEAGUES. BUT THE FACT OF OUR POLARIZATION, THE FACT THERE ISN'T A CLEAR MAJORITY IN THE SENATE MAKES IT A LOT HARDER FOR CONGRESS TO CONTROL THIS COURT AND FOR THE COURT TO CONTROL ITSELF. >> YOU REFERENCED THINGS THAT COURT CAN DO. THE RECUSAL IN TRANSPARENCY ACT, THE BILL PROPOSED BY SENATOR DURBIN AND SENATOR WHITEHOUSE, IT ADDS CONDUCT. WHAT DO YOU MAKE OF THIS PROPOSED LEGISLATION? >> I THINK ONE THING THAT IS REALLY INTERESTING HERE, IT PROVIDES FOR A COUNSEL WHO WOULD BE AVAILABLE, AN ETHICS COUNSEL AVAILABLE TO VET QUESTIONS BEFORE THE JUSTICES. FAMOUSLY JUSTICE THOMAS SAID HE CONSULTED HIS COLLEAGUES TO FIND OUT IF IT WOULD BE OKAY TO DISCUSS TRAVEL OR HOTEL STAYS BILLIONAIRES PROVIDED TO HIM. IF WE HAD AN ETHICS COUNSEL THERE WOULD BE NO NEED TO CROWD SOURCE THIS QUESTION. YOU COULD GO TO ONE PERSON TO PROVIDE A CONSISTENT ANSWER TO ALL OF THE JUSTICES WITH SOME UNIFORMITY AND IF THOSE RECOMMENDATIONS AREN'T FOLLOWED THERE COULD BE ACCOUNTABILITY. THOSE ARE BASIC THINGS. THESE PROPOSED STATUTES ARE NOT UP ENDING THE CART. THE FACT THOSE KINDS OF FINGERINGS CAN CHANGE THINGS SHOWS HOW OFTEN THINGS GO OFF THE RAILS. >> YES. MELISSA, GREAT TO SEE YOU, AS ALWAYS. MELISSA MURRAY
