Alito's "defense" of flying the J6 flag is transparent BS
Going full insurrectionist is not normal.
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Everyone is waiting to see what the United States Supreme Court will do with Donald Trump’s outlandish claim he should be given absolute immunity from prosecution for his attempts to overturn the 2020 election. Oral arguments indicated that even the conservative justices have some concerns about that stance, but we’ve now learned that Justice Samuel Alito seems pretty on board with Trump’s coup attempt.
It’s yet another ethics scandal for the Court, and it’s a reminder that the right-wing justices operate in a realm of complete unaccountability.
Last week, the New York Times broke news that on January 17, 2021 — 11 days after Trump exhorted his supporters to storm the Capitol and three days before President Joe Biden's inauguration — an upside-down American flag hung outside the Alito home in Alexandria, Virginia. Hanging the flag upside down is literally prohibited by the flag code, save for “as a signal of dire distress in instances of extreme danger to life or property.” There’s a long tradition of upside-down flags being flown by protesters on the left and the right, but by January 17, 2021, it was widely known as a symbol used by “Stop the Steal” supporters.
How long the upside-down flag hung at the Alito home isn't clear. The Times reviewed a January 18, 2021, email from a neighbor that said that it had been upside down for a number of days by that point. Several neighbors spoke to the Times about it but requested to remain anonymous, in part because they feared reprisal. Alito made a brief email statement to the Times, and while the statement succeeded in throwing his wife under the bus, it didn’t do much else. Alito said he “had no involvement whatsoever in the flying of the flag” as it was “briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on lawn signs.”
Even if one takes this statement at face value, it falls far short of an explanation. Several days after an attempted insurrection, a Supreme Court justice let his wife hang a well-known symbol of that attempted insurrection because she got into a spat with the neighbors? Even if the lawn signs were “personally insulting” to the Alitos in some way, how is flying an upside-down flag a legitimate response?
Alito was more expansive with conservative Fox News correspondent Shannon Bream, but even in that friendly atmosphere, he couldn’t come up with a convincing explanation. He told Bream a neighbor had put up a sign that said “Fuck Trump,” and it was 50 feet from a children’s bus stop. Mrs. Alito decided to talk with those neighbors, but according to Alito, the conversation didn’t go well, and then those neighbors put up a sign that attacked his wife and blamed her for January 6.
Then, when the Alitos were taking a neighborhood stroll, Mrs. Alito got into an argument with one of the residents of that property, who called her “the c-word.” After that, she was distraught and decided to make what Fox News characterized euphemistically as “some sort of statement” by hanging the flag upside down. Notably, when the Washington Post spoke with a neighbor who described the content of the offending signs, they said they did not even mention the justice directly.
None of these additional details makes Alito or his wife look any better. The most charitable reading is that after a neighbor accused Mrs. Alito of being an insurrection enthusiast, she reacted by hoisting a symbol of support for insurrection. A Supreme Court justice’s wife is busy acting out the Matt Bors comic where a MAGA type reacts to hearing someone say Trump fans are racist by going full Nazi.
There will be no consequences — and Alito knows it
It isn’t surprising that Alito has no real interest in explaining himself. Why should he? He has a lifetime appointment and Supreme Court justices are not bound by any enforceable ethical rules. He also knows that while some Democrats in Congress have raised concerns about the need for ethics reform, they simply don’t have the numbers to pass a law. Alito can issue vague statements that in no way deny that Mrs. Alito hoisted an upside-down flag to show support for a belief the 2020 election was stolen and he will suffer no consequences.
This would not be the case for other court employees. The Times reported that the Supreme Court’s internal rulebook for employees bans public displays of partisan political views, including signs and bumper stickers. When asked whether that rule applied to the justices, the Court simply refused to respond.
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After the Times report appeared, Senate Judiciary Chair Dick Durbin called for Alito to recuse from any cases related to the 2020 election. There’s no reason to think Alito will do so, particularly given that the upside-down flag was hanging outside his home while the Supreme Court decided whether to hear two 2020 election cases from Republicans in Pennsylvania over whether that state had improperly extended the deadline for mail-in ballots. Alito dissented from the decision not to hear the case.
Durbin, instead of digging into any of this, has already said he doesn’t plan to hold hearings.
At the oral arguments about presidential immunity, Alito twisted himself in knots to protect Trump, eventually landing on a theory that applying the rule of law to Trump would wreck democracy: “If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
If that seems hard to follow, that’s because it is. Alito seemed to be saying that if you prosecute Trump for refusing to leave office after his election loss, future presidents will also refuse to leave office for fear of prosecution. So, the only way to ensure future presidents won’t do what Trump did is to let Trump get away with what he did? This is as poorly reasoned as Alito’s justification for the upside-down flag.
Of course, Alito’s wife isn’t the only Stop the Steal fan among Supreme Court spouses. After Trump lost, Clarence Thomas’s wife, Ginni, repeatedly texted Mark Meadows to encourage his efforts to overturn the results. She pushed Arizona Republicans to choose a slate of fake electors, actually attended part of Trump’s January 6 rally and, when appearing before the January 6 Committee in 2022, still asserted the election was stolen.
None of this led her husband to recuse himself from January 6-related cases. The Code of Conduct for the justices is aspirational, not enforceable, so despite the code stating justices should recuse if they have a personal bias or if a spouse has “any other interest that could be affected substantially by the outcome of the proceeding,” there’s no recourse if a justice just ignores the rule.
The system simply isn’t set up to deal with justices who are scofflaws. Nor do some legal elites seem able to rise to meet the moment. Witness the email Stephen Gillers, a New York University law school professor who is one of the foremost scholars of legal ethics, sent to the Washington Post. Gillers wrote that he didn’t think “an objective observer would question Alito’s impartiality” and found it “impossible to believe that Alito knew the flag was flying upside down or, if he did know, that he knew the relationship to ‘Stop the Steal.’”
Even Alito himself has not stated that he didn’t know the flag was upside down or that it represented solidarity with Stop the Steal efforts. Gillers is straining to invent excuses for a justice who feels no need to excuse his own behavior.
The Fox-ification of SCOTUS
This isn’t a one-off for Alito. Shortly after the 2020 election, he gave a speech to the Federalist Society that Fix the Court executive director Gabe Roth described as “more befitting a Trump rally than a legal society.” The justice ranted about covid restrictions even as related cases were before the Court, and complained about same-sex marriage cases. When Democrats in Congress began talking about an ethics bill, Alito ran to the Wall Street Journal to declare that “no provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.” Alito routinely gives speeches about “religious liberty” where he attacks those who disagree with him.
This past weekend, legal journalist Chris Geidner broke news that Alito decided to dump his Bud Light stock amid the conservative furor over the company’s connection to transgender influencer Dylan Mulvaney. These aren’t the behaviors of a neutral, apolitical justice, but rather those of a Fox News commentator in a robe.
And for that, Republicans love him. Shortly after the Times story ran, Republicans on the House Committee on the Judiciary posted on X a picture of Alito and Thomas with the all-caps caption, “AMERICAN HEROES.” They’re praising Alito and Thomas because it triggers the libs, those beleaguered folks who foolishly believe that norms and rules matter. Republicans correctly view Alito and Thomas as partners in a project to remake America into a hyper-conservative Christian state rather than as part of a separate branch of government that acts as a check and balance on the legislature.
Republicans also correctly view both justices as people who don’t believe any rules should apply to them. Thomas’s flouting of the ethics rules has received more attention than Alito’s, likely because the former’s avariciousness has led him to accept a comically large amount of money from extremely rich people. Senate Democrats are still trying to untangle whether Thomas lied on his taxes by not reporting loan forgiveness from a billionaire pal who helped him buy his $267,000 RV.
The only thing that will fix this is court reform, enshrined into law by Congress. The Supreme Court needs to be expanded, and it needs an actual, enforceable ethical code with real consequences when justices flout the rules. Alito and Thomas have shown they are unwilling or unable to regulate themselves, so it’s time to do it for them.
That’s it for today
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Thanks for reading.
I'm not sure how or why SCOTUS was set up with no accountability. These are flawed people like all of us. Thomas and Alito, in my opinion, should be impeached and removed from the Supreme Court. They are traitors to our Rule of Law, our Democracy and our Republic. I realize in order to accomplish this, we need to win in November. My prayers and hope is that we win and kick these awful people to the curb. Vote Blue!!!
"He told Bream a neighbor had put up a sign that said 'Fuck Trump,' and it was 50 feet from a children’s bus stop."
An interesting concern, given that no kids would be present at said bus stop due to remote learning in Jan of 2021.