May 22, 2024

Alito and the Flag

Last week, the New York Times reported, “After the 2020 presidential election, as some Trump supporters falsely claimed that President Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American flag. One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel A. Alito Jr

“‘I had no involvement whatsoever in the flying of the flag,’ Justice Alito said in an emailed statement to The Times. ‘It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.’” New York Times

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From the Left

The left criticizes Alito, arguing that Supreme Court justices must avoid appearing partisan.

“Alito’s statement is notable because, as the Times reporter Michael Barbaro pointed out, it does not deny that the flag was flown in solidarity with the insurrectionists. It also does not disavow the insurrectionist claim that the 2020 election was stolen, and it does not condemn the Trump-directed attempt to overthrow the constitutional order that Alito has sworn an oath to uphold…

“Alito is also not the only justice whose spouse seems to have supported Trump’s failed coup. The congressional investigation into the events of January 6 showed that Virginia Thomas, a conservative activist and the wife of Justice Clarence Thomas, tried to persuade Arizona Republicans to overturn the result in their state. Justice Thomas was later the only dissenting justice in a ruling that allowed Congress to access Trump-era presidential documents related to the Capitol riot…

“That raises the most important issue here, which is that Alito and Thomas sit on the nation’s highest court and are poised to rule on matters related to Trump’s attempts to unlawfully hold on to power. In one case, they already have—deciding that the Constitution’s ban on insurrectionists holding office does not disqualify Trump from running for president.”

Adam Serwer, The Atlantic

“The rules forbid judges from actions like ‘displaying signs or bumper stickers.’ Alito and his allies would have us believe that the rules allow Alito to have signs or bumper stickers on his house or car as long as his wife is the one to put them up…

“Alito could drive around town in a car plastered with stop-the-steal bumper stickers as long as he did not personally affix them. Indeed, he could probably show up at the Supreme Court in a MAGA cap and a Trump mug-shot T-shirt if his wife picked his outfit for him. The wife loophole Alito has created is big enough to swallow up the regulations against political activity.”

Jonathan Chait, New York Magazine

“Even if we don’t actually believe in the entire impartiality of the judiciary, we’re still better off with the expectation that judges will behave as though they’re not taking sides…

“Nobody’s forced to serve on the Supreme Court, and members of the justices’ families should know what they’re getting into. The rules are harsh, but we need them if there’s any hope that the system will work. So whether the neighbors or the Alitos have the story right, inverting the flag was a terrible mistake. It shouldn’t have happened…

“Others can display lawn signs, put bumper stickers on their cars, get out the vote for favored candidates. They can call people names online or on the street. They can fly the flag any way they choose. All are protected First Amendment activities. Supreme Court justices must avoid all those things, and, for the most part, so should their spouses.”

Stephen L. Carter, Bloomberg

From the Right

The right defends Alito, arguing that he is being targeted for his conservative views.

The right defends Alito, arguing that he is being targeted for his conservative views.

“[The Times article] says that, in late January 2021, ‘The court was still contending with whether to hear a 2020 election case, with Justice Alito on the losing end of that decision.’ This is highly misleading. First of all, after January 6, Joe Biden’s election had been certified, and even Donald Trump was sullenly accepting his fate and packing boxes headed for Florida. It was over. On January 7, Trump publicly conceded…

“Neither Alito nor Thomas nor any other justice ever ruled with the slightest sympathy for Donald Trump’s conspiracy theories, and the Court had no cases before it by January 17, 2021, that would alter the [election] outcome…

“By mid January, three things were true and publicly known: Alito had ruled against any relief for the Trump campaign in Texas v. Pennsylvania, Trump’s legal challenges were effectively dead, and Alito’s own November 6 order had ensured that everyone could see that the one remaining legal issue in Pennsylvania involved too few votes to change the outcome.”

Dan McLaughlin, National Review

“It may have been imprudent of Alito’s wife to fly the flag, but spouses of justices are not justices. They have First Amendment protections like anyone else. Neither Mrs. Alito nor Mrs. Clarence Thomas nor Mr. Ketanji Brown Jackson is bound by Supreme Court ethical guidelines. All of them are free to have their own opinions. Moreover, by the time the Alito house displayed the distress flag, Donald Trump had already conceded the 2020 presidential race…

“Then again, even if Alito himself had hoisted the distress flag to make a point, it still wouldn’t warrant recusal by the left’s own standards. Justices often make political statements. Ruth Bader Ginsburg, still beloved by the left, was perhaps the most openly partisan justice in modern times. In 2016, she told The New York Times that she could not even ‘imagine’ what the country would look like with ‘Donald Trump as our president,’ and not a single outlet demanded she recuse herself from any cases involving the then-president.”

David Harsanyi, New York Post

“I lived through January 6 as an extremely online Never Trumper deeply familiar with the alt-right. And yet I have only just heard the claim, much to my surprise, that in January 2021, flying a flag upside-down was immediately known as the universal MAGA signal for ‘stop the steal,’ in much the same way that everyone who flashes you an ‘OK’ sign is secretly a Groyper…

“There’s no ‘there’ there when it comes to the accusations. Nobody is going to recuse himself or be forced to. But that’s not the goal. The goal in the short term is to ‘pre-spin’ impending Supreme Court decisions, including one about Trump’s immunity from prosecution or lack thereof; the longer-term goal has always been to ‘soften the ground’ in advance of a major legislative push to pack or otherwise curb the independence of the judicial branch.”

Jeffrey Blehar, National Review

A libertarian's take

“People fly upside-down flags for all kinds of reasons; it typically signals ‘SOS’ or a sense that the country is horribly off course. People have historically flown flags in this manner out of protest for the Vietnam War, out of protest for the Supreme Court's 2022 decision to overturn Roe v. Wade, to contest election results (believing the election was stolen or that voter fraud was rampant), or—and don't get the two confused—to signal displeasure with the election results…

“This reminds me of when media outlets and the Anti-Defamation League claimed the ‘OK’ symbol was actually a white supremacist gesture. If you look hard enough, you can find disturbing symbols anywhere you look, but you must sometimes suspend logic and reason in order to do so. This does not seem like a situation where a sitting Supreme Court justice is supporting overthrowing election results; it looks like a situation where The New York Times is straining to make that the narrative.”
Liz Wolfe, Reason

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