Flag Flap heeps distrust and dishonor into Alito’s front yard.
Alito's “Stop the Steal” banner joins him with Jan. 6 insurrectionists.
The photo of the upside down American flag hanging on a flag pole at Samuel Alito’s house says it all.
The upside down Justice
The image shows the same upside down flag common among rioters who broke into and ravaged the U.S. Capitol on Jan. 6. Symbolically and dramatically, it represents solidarity with the dishonest “Stop the Steal” movement hatched by outgoing, losing President Donald Trump. Photographed by neighbors of the SCOTUS justice who lives in Alexandria, Virginia, it was taken on January 17, 2021, 11 days after January 6 and three before Joe Biden’s inauguration. It showed up in Thursday’s New York Times.
Real SCOTUS Housewives of the Insurrection
Alito’s allegiance with that group now joins that of Clarence Thomas whose wife, Ginni, who worked tirelessly on Jan. 6 – repeatedly texting then Chief of Staff Mark Meadows and others, urging them to do everything possible to ensure Donald Trump remains in the presidency.
Despite the wide scale publicity around his wife’s active efforts to prevent the election’s certification, Thomas did not recuse himself from deciding cases Donald Trump brought before the Court to try to overturn the election. Nor since, as he has continued to sit in on the multitude of cases Trump has brought before the Court on – Jan. 6, election security, and now immunity from criminality issues.
The strong perceptions of partiality are clear for now two SCOTUS justices as Americans have doubled their reasons for doubting the Court as it’s currently configured can be counted on to protect democracy — not if two of its justices are tied to Jan. 6.
Although Alito and Thomas have often formed a concerted twosome in finding for Trump on many of these issues (see Trump v. Vance on issuing a criminal subpoena to a sitting president and the Trump campaign’s case to throw out the Pennsylvania Supreme Court’s case that allowed for late-arrival mail-in ballots), Alito’s actual sympathies with the Jan. 6 insurrection were never out in the open.
Now, the images of a flag that figured prominently in the “Stop the Steal” movement and the violent insurrection that ensued have placed those allegiances, literally, in Alito’s own front yard.
Blame it on Martha
Alito blamed the incident on his wife, Martha-Ann, whom he said was the one who raised the flag. Her/their reason? Allegedly, the Alitos’s Alexandria neighbors were not Trump fans, and yard signs during the November 2020 election and into January 2021 made those allegiances clear, with one proclaiming “F*** Trump.”
Martha showed them by hoisting the “Stop the Steal” solidarity flag as payback. But not just as a brief, misguided middle finger. It proudly flew on the Alito property from Jan. 6 - 17 – from the day of the insurrection to three days before Joe Biden’s inauguration. Alito had to see and approve its message wafting in the breeze for a full 11 days.
The $10M headhunter
But Ginni Thomas and Martha-Ann Alito aren’t the only SCOTUS housewives in hot water. Chief Justice John Roberts’ wife Jane has made headlines by raking in more than $10M as a “legal consultant” (a.k.a. headhunter) for top legal firms who routinely represent large monied interests before the Court.
How could that provide a conflict of interest? Imagine the discussions with candidates where assessments are made based on her knowledge of the Court’s various justices and their judicial “philosophy.” Could not her inside information give a leg up to would-be litigators planning their strategies to appeal to one justice or another? It’s the kind of inside baseball that law firms would pay dearly for, and apparently have.
Low bar (pun intended)
Both Alito and Thomas’s refusal to recuse themselves from these and a multitude of other cases with obvious connections to plaintiffs (See Alito’s Burwell v. Hobby Lobby decision that immediately followed his dinner with the winning litigants) continued to raise calls for judicial reform.
Last November, the Court responded to growing scrutiny by adopting an ethics code with five major, broadly worded provisions:
A Justice should uphold the integrity and independence of the Judiciary.
A Justice should avoid impropriety and the appearance of impropriety.
A Justice should perform the duties of office fairly, impartially, and diligently.
A Justice may engage in extrajudicial activities that are consistent with the obligations of the judicial office.
A Justice should refrain from political activity.
Neither specific, as are ethics provisions governing other federal courts, nor accompanied by an enforcement mechanism – such as the installation of an Inspector General who acts as watchdog on ethics issues – the Court’s ethics code was widely greeted as one with no clarity or teeth.
As “integrity,” “impropriety,” “impartiality,” and “consistent with the obligations of the judicial office” offer so much wiggle room, the “honor system” unenforcement scheme seems designed for Justices to continue on the same unethical path. That neither Alito nor Thomas has voluntarily or been made to recuse himself from any of the Trump cases is proof positive the ethics code is, for all practical purposes, a sham.
Bad scandal, bad timing
Given the lack of meaningful ethics safeguards, Alito’s flag flap comes at a bad time for the Supreme Court with its approval ratings sinking to all-time lows. According to the 538 polling site, the Court has gone from a 35 percent disapproval rating in January 2022 to now a 55 percent disapproval – a 20 percent drop since its June 24, 2022 Dobbs v. Jackson decision overturning Roe v. Wade. And the numbers don’t yet reflect any likely blowback over Alito’s flag.
The plunge also factors in its recent decision to consider Trump’s claims for immunity from criminality, which has indefinitely delayed the federal criminal trial for his role in Jan. 6 (538.com). As a New York Times editorial said:
“The decisions will shape how accountable he (Trump) can be held for trying to overturn the last presidential election and his chances for reelection in the upcoming one.”
As NBC political analyst John Heilemann said:
“There is nothing more important than the notion that a President who has been indicted for participating in and leading an insurrection against the government. That case should be heard before the election” (17 may 2024 msnbc.com)
That Justice Alito and the other Republican-appointed judges appear to have “taken a pass” on making that happen gives further credence to the national low opinion of the Court.
What’s old is new
The raging partiality on the Court reminds many of us of the High Court’s disastrous 2000 Bush v. Gore decision. The thinly decided 5-4 ruling stopped Florida’s state-mandated recount of votes in a razor-thin presidential election. And minus a completed recount, it handed over the election to George W. Bush and, by extension, Samuel Alito whom Bush appointed to the Court.
While the Supreme Court has never fully regained the two-thirds approval before Bush v. Gore, its approval rating was able to inch up to a little more than 50 percent, but then plummeted again in June 2024 after the present Court’s Dobbs’ decision destroying Roe v. Wade (news.gallup.com).
On the street where he lives
Except in conservative Republican circles, the Court’s unpopularity is now so widespread that Justice Alito’s angry, divided Alexandria, Va. street serves as a microcosm of attitudes toward Alito and the Court felt across the U.S.
As reported in yesterday’s New York Times, as recently as last Saturday, protesters marched on Alito’s street waving flags of their own saying, “Don’t Tread on My Uterus,” and using megaphones to “broadcast expletives against Judge Alito” in front of his home.
Alito did not hear them as he was giving a commencement address in Steubenville, Ohio at a Fransciscan Catholic university. But Martha-Ann Alito was at home, appearing in the window, and complaining about the protestors to the Supreme Court security detail outside.
– trg
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