When I saw this headline in the New York Times late Thursday, a lot of different things ran through my mind. First, I wondered who had gotten through security to rig the flag at the Justice’s home. Then, as I read the story's opening lines, I figured the photo had to be a deep fake. Here’s what I did not anticipate: that in January of 2017—for several days around January 17th, to be precise, both after the insurrection on the sixth and while the Supreme Court was still considering whether to hear an election-related case—the inverted flag associated with the “Stop the Steal” movement was flying on a flagpole on Justice Alito’s lawn.
We know it’s true because Justice Alito blamed his wife when asked. As though a sitting Supreme Court Justice, upon pulling up to his home and seeing the flag, wouldn’t immediately take it down and say, “Honey, I understand your feelings, but as a Justice on the United States Supreme Court, I must avoid even the appearance of impropriety, and that flag conveys a political sentiment that is an affront to the rule of law I’m sworn to uphold, especially after rioters carrying it swarmed the Capitol a week and a half ago.”
The Times reported that Alito emailed the following statement to them when asked for comment: “I had no involvement whatsoever in the flying of the flag. It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” I have spent a good bit of time in my life around Judges. My Father-in-Law was a federal judge, my Husband was a state court judge, and I have a number of close friends on the bench. I am certain that none of their spouses or other family members would have even considered placing a political symbol like this in their front yard because they would have understood the rules, just like I did. And the rules are, you don’t do that. At the time the Alito’s flew the flag in front of their house, the Court was deciding whether to hear a vote-counting challenge from Pennsylvania. The majority said no, but Justice Alito, joined by Thomas, dissented. They wanted the Court to take the case, whose theme, in brief, was that the Pennsylvania election had been stolen—stop the steal. You can hardly blame the folks who saw the flag flying at the Alito’s home and decided it had to be brought to the Court’s attention. Surprisingly, it’s taken this long to become public. The Times reported that the half-dozen or so neighbors who were aware of it asked to remain anonymous because they “feared reprisal.” Let that sink in as we contemplate what a second Trump term in office might look like. The ethics rules that apply to all of the lower federal court judges in this country are similar to those I’m used to as a former DOJ employee. No political signs in front of your house, not bumper stickers on your car. It’s not complicated. If you’re committed to serving the people and ensuring they have confidence in the fair administration of justice, you just don’t. But Sam Alito did.
Justice Alito seems to have forgotten, or perhaps he’s just flagrantly ignoring, the fundamental truth of this Republic, which is that judges are not meant to be above the law. If anything, they must hold themselves to a higher standard in service to ensure that American justice holds the high standards of the Founding Fathers to whom Justice Alito frequently pays lip service. In a different era, Justice Alito, if not resigning from the Court over such a serious breach of ethics would, at a minimum, recuse himself from two cases that are currently pending before the Court: the presidential immunity case and the case deciding whether the statute that criminalizes interference with an official proceeding applies to January 6. Will there be any consequences in Alito’s case? Doubtful. Will Alito continue to sit on those two cases alongside Clarence Thomas, who has his own ethical issues? Undoubtedly. Much as Trump eroded public trust in our essential institutions, two Justices are stripping public confidence in the nation’s highest court. Permitting Donald Trump to name any more justices to this Court would be a blow the nation could not withstand. We are entitled to judges and justices who take their oaths of office seriously. Imagine if it came to light that Justice Sotomayor had an Antifa bumper sticker on her car or Justice Jackson had a “Dark Brandon” sign in her front yard. What would the fallout look like? This is important, if belated, news particularly in the context of earlier reports about ethical lapses by members of the Supreme Court. It deserves a lengthy turn in the news cycle. There are a lot of weighty issues on the ballot in November. We do ourselves and our future a disservice if we do not include the Supreme Court as one of them. Thanks for joining me at Civil Discourse. There’s a lot of news from the Trump trial in Manhattan and elsewhere to write about tonight, I’ll be back for that. But this news about Justice Alito struck me as too important for anything other than our immediate attention. I appreciate those of you whose paid subscriptions allow me to devote time and resources to this work. If you aren’t already a paid subscriber, please consider trying it out. We’re in this together, Joyce |
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