Alito Home’s Flag Is Symbol of New Partisan Era at Supreme Court
One of the sadder spectacles in recent U.S. politics has been the whining emanating from the lifetime appointees of the U.S. Supreme Court about challenges to their nonpartisanship and independence. It hasn’t been the exclusive provenance of the Court’s conservative majority; former Justice Stephen Breyer has defended the Court from accusations that it has become politicized in a post-retirement book, as he had done earlier. And his successor as the Court’s most senior liberal, Sonia Sotomayor, has also argued that lifetime tenures insulate the jurists from political pressures.
But Court conservatives seem especially sensitive to the impression that there is a legal counterrevolution in which they are (by all accounts) engaged. Indeed, Amy Coney Barrett, the justice whose late pre-reelection nomination by Donald Trump and speedy confirmation by a Republican-controlled Senate represented the culmination of the conservative conquest of the Court, has been outspoken in arguing that the judicial philosophies of federal judges shouldn’t be conflated with partisan loyalties. And without question, the conflicting hallmarks of the “Roberts Court” (SCOTUS eras are typically identified with the tenure of chief justices) have been a historic if uneven shift to right-wing activism and frantic efforts by the chief to deny, resist, and sometimes even counteract the increasingly strident tendencies of his allies. So you can imagine that Roberts is especially aggrieved by the latest incident illustrating SCOTUS partisanship emanating from Justice Samuel Alito, as reported by the New York Times:
One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel A. Alito Jr., in Alexandria, Va., according to photographs and interviews with neighbors. The upside-down flag was aloft on Jan. 17, 2021, the images showed. President Donald J. Trump’s supporters, including some brandishing the same symbol, had rioted at the Capitol a little over a week before. Mr. Biden’s inauguration was three days away. Alarmed neighbors snapped photographs, some of which were recently obtained by The New York Times. Word of the flag filtered back to the court, people who worked there said in interviews.
“That time,” to be clear, was shortly after the January 6 insurrection, in which the “inverted flag” was prominently displayed and when, as the Times notes, “the court was still contending with whether to hear a 2020 election case, with Justice Alito on the losing end of that decision.”
The revelation casts a new and baleful light on the furious and defiant tone Alito subsequently adopted in writing and defending the infamous majority opinion in Dobbs v. Jackson Women’s Health Organization, which reversed Roe v. Wade after nearly half a century in which the Court recognized a constitutional right to choose abortion. Roberts, it should be recalled, tried to steer the Court toward a less inflammatory and more incremental attack on abortion rights, but Alito was having none of that. Indeed, the most persuasive (if unprovable) theory about the infamous leak of Alito’s opinion months before Dobbs was announced is that he wanted to freeze the Court where it was lest Roberts succeed in mitigating the damage to its reputation.
If you view the latest stage in Supreme Court evolution as a revolt led by Alito and Clarence Thomas against Roberts’s leadership, the flag-flying incident could well be a landmark moment. In response to the Times report, Alito blamed the incident on his wife (and his neighbor):
“I had no involvement whatsoever in the flying of the flag,” Justice Alito told the Times in an email. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” … Justice Alito’s wife, Martha-Ann, had clashed with a neighbor who displayed an anti-Trump sign using an expletive, according to the Times.
He later offered more specific details to Fox News host Shannon Bream, insisting the neighbor had made a sign personally addressing Mrs. Alito and had used increasingly vulgar language amid the feud.
Following that exchange, Mrs. Alito was distraught and hung the flag upside down "for a short time". Justice Alito says some neighbors on his street are "very political" and acknowledges it was a very heated time in January 2021. 4/4
— Shannon Bream (@ShannonBream) May 17, 2024
Alito knew, of course, that displaying the most inflammatory of partisan and ideological symbols at his residence would create an appearance of impropriety that he cannot simply slough off as a First Amendment exercise by his spouse, who presumably had other avenues for squabbling with anti-Trump neighbors. As the Times notes, there are clear rules against this sort of thing:
The longstanding ethics code for the lower courts, as well as the recent one adopted by the Supreme Court, stresses the need for judges to remain independent and avoid political statements or opinions on matters that could come before them. …
The court has also repeatedly warned its own employees against public displays of partisan views, according to guidelines circulated to the staff and reviewed by The Times. Displaying signs or bumper stickers is not permitted, according to the court’s internal rule book and a 2022 memo reiterating the ban on political activity.
There is no spousal or other family immunity exception to such rules and common-sense guidelines, which is why the open insurrectionary agitation by Justice Thomas’s MAGA activist wife, Ginni Thomas, led so many commentators to demand his recusal in cases involving January 6. Now we are hearing similar demands involving Alito:
New: Senate Judiciary Chairman Dick Durbin is calling on Alito to recuse himself from all cases involving the 2020 election.
— Kyle Griffin (@kylegriffin1) May 17, 2024
"The Court is in an ethical crisis of its own making, and Justice Alito and the rest of the Court should be doing everything in their power to regain… https://t.co/krbNk3ama7
We’ll see if the revelation of the freak flag flying at the Alito home spurs Roberts into another frenzy of claims about the independence of a Court majority he clearly no longer controls. But it may be too late. This may ultimately be remembered as the Alito-Thomas Court, signaling an era when control of the commanding heights of the federal judiciary became another prize of partisan supremacy.