The Ongoing Erosion of SCOTUS
The Alitos and the upside-down flag.
The NYT reports: At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display
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., in Alexandria, Va., according to photographs and interviews with neighbors.
If one is unfamiliar with symbolism, the piece explains as follows.
Turning the American flag upside down is a symbol of emergency and distress, first used as a military S.O.S., historians said in interviews. In recent decades, it has increasingly been used as a political protest symbol — a controversial one, because the flag code and military tradition require the paramount symbol of the United States to be treated with respect.
The linked piece does a good job of further elaborating on the linkage of the upside-down flag at the Stop the Steal movement.
When confronted with this story, Justice Alito deflects.
“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.”
Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot.
Let’s just stop there. Alito has to know that this is nonsense. I am just a dean at a regional university, but if my wife put a sign in the yard that was associated with, say, racist views in a way that Black students would think I was biased against them, I could not just blame it on my wife as if it had no bearing on me. If she had a beef with the upper administration of my institution and displayed messaging that could reasonably be associated with criticizing them in an inflammatory way, that would definitely redound to me. (And likewise, if I displayed something that could affect her professionally).
Being a Justice on the US Supreme Court is many quanta beyond my petty authority and Alito knows what job he has. To pretend like it has nothing to do with him is beyond nonsense.
Look, on the one hand, I am not at all suggesting that spouses must have identical views on things. But on the other, symbols displayed (even if “briefly”) on a shared home are the responsibility of those in the home, especially adult spouses.
The mere impression of political opinion can be a problem, the ethics experts said. “It might be his spouse or someone else living in his home, but he shouldn’t have it in his yard as his message to the world,” said Amanda Frost, a law professor at the University of Virginia.
This is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases,” she said.
Interviews show that the justice’s wife, Martha-Ann Alito, had been in a dispute with another family on the block over an anti-Trump sign on their lawn, but given the timing and the starkness of the symbol, neighbors interpreted the inverted flag as a political statement by the couple.
Look, it strains credulity that the selection of that symbol at the moment in time with an anti-Trump neighbor was anything other than a “stop the steal” message. That is a highly inflammatory, and utterly unacceptable message coming from the residence of a Supreme Court Justice.
It speaks to the self-degradation of the Court and to why trust in it is eroding. Moreover, it reasonably deepens concerns that there are highly placed members of the federal government who were, and presumably still are, sympathetic to the January 6th insurrection and to Trump’s attempt at overturning the election. We already know that Clarence Thomas’ wife, Ginni, holds such views. So, again, while it is possible that Martha-Ann Alito and Ginni on the one hand have insurrectionist views and Samuel and Thomas do not, I must confess as someone who will be married thirty-four years next month, I find it unlikely that the spouses in question are starkly divided. And, really, the behavior of both husbands on the bench to date signals far more sympathy than antipathy to those views.
Dahlia Lithwick and Mark Joseph Stern take the Alitos to tasks in Slate (The Smallest Justice Who Ever Lived) and the subtitle of their piece is spot-on: “Samuel Alito’s explanations for his wife’s upside-down American flag make the story even worse.”
First, they correctly note that we can’t know with certainty what the symbolism means.
We can certainly quibble (and Alito’s defenders surely will) about whether an upside-down flag really represents “Stop the Steal,” as Kantor’s experts affirm, or some other message of peace and goodwill. We can and will debate over Alito’s claim that his wife hoisted the flag because one of the neighbors hurt their feelings (so, #feminism). But the saddest and most arresting part of this endless downward spiral for the seven jurists who should know better, and the two who do not, is not that they don’t care about what they are doing to the court—it’s how pitifully, shabbily small these ride-or-die political battles really are.
In other words, the Alitos shouldn’t be engaging in really any political symbolism on their home because Samuel is a Justice. And, as they note, “internal policy and external law required them to refrain from acting like thin-skinned partisan nuts, and to recuse themselves from relevant cases when they failed to adhere to this standard.”
Wouldn’t that be nice?
Second, they directly report on the neighborhood dispute.
And yet, in statements to the New York Times and Fox News’ Shannon Bream, Alito implied that he and his wife, Martha-Ann, simply had no choice but to disrespect the stars and stripes by vulgarly violating the U.S. Flag Code because it was necessary to own a liberal neighbor. The justice told Bream that this neighbor put up a “Fuck Trump” sign—where children might see it!—and then another sign “personally” blaming Martha-Ann for Jan. 6. Finally, “a male in the home” called Martha-Ann “the c-word” while she was on a walk with her husband. All this led her to join countless “Stop the Steal” enthusiasts in hanging her American flag upside down.
At the time, this act was associated with fringe-right, QAnon-style conspiracy theorists who supported Trump’s failed coup and dismissed Fox News as too squishy.
Look, I am not going to defend people engaged in name-calling, but maybe, just maybe, if you are married to one of the most powerful members of the US government, you shouldn’t be getting into petty political squabbles with your neighbors. Moreover, none of the above, as unpleasant as Martha-Ann may have felt it was, logically leads to hanging a US flag upside-down in front of your home, especially given the context of the moment.
None of the Alitos’ explanations so far even attempt to explain why Martha-Ann landed on this gesture, out of all the possibilities, to further upset and provoke her progressive neighbors. Readers are also left to guess at the true origin of the conflict; are we really supposed to think that the neighbors picked this fight unprovoked, and the Alitos are completely blameless? The justice’s defenders are scrambling to muddy the waters with some alternate explanation, but the truth is crystal clear, and unrefuted by the Alitos themselves: That flag was hung upside down to piss off some libs. At best, Martha-Ann Alito was trolling her neighbor by professing a militant belief that Biden stole the election; at worst, she held that belief sincerely.
I can’t stress enough that the inability of the Alitos (and the Thomases) not to see how their willingness to indulge themselves in petty partisan politics is undermining a major institution. And, worse than just affecting perceptions, provides direct evidence that we can’t trust either Samuel or Clarence to actually have fidelity to the broader constitutional order. Instead, there is every reason to see them as partisan actors above all else.
Let’s be clear that everything these neighbors stand accused of doing is obviously protected speech under the First Amendment. There is no allegation of genuine harassment or true threats; these people just wanted to express displeasure toward a very public figure and his somewhat public wife. And though Alito seems to believe that he and his wife were within their rights to fight back against an irritating neighbor, the staff who work under Alito at SCOTUS would have no such luxury. The Times piece lays out the strictures on court employees that ban political signs and bumper stickers, “partisan political activity,” and even “nonpartisan political activity” that “could reflect adversely on the dignity or impartiality of the court.”
The court would not say whether the rules that censor its staff also apply to the justices. But Alito must know how terrible it looks for his own household to breach the decorum requirements imposed on the people who work for him. The very idea that the neighbors’ unkind words forced the Alitos to violate the network of rules that prevent shows of bias is just a variation on last year’s defense that a comped seat on a private jet is not subject to disclosure rules because it would have been vacant otherwise.
So when Alito throws his wife under the bus—the flag was “briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs”—he’s issuing another justification: He gets to break the rules because she was in a fight with the neighbors. He gets to break the rules because the seat on the plane was otherwise unoccupied. He gets to break the rules because the rules are always trying to trip him up and catch him out.
Indeed.
And I agree fully with this:
The sheer pettiness of these gripes—the fact that these men continue to filter justice through their small, round, grudge-colored glasses—is what is breathtaking here. If being an unelected, lifetime-appointed, unbound-by-rules jurist means anything at all, should it not mean that you perhaps rise above your grassy suburban neighborhood’s feelings wars? Apparently not. Apparently the life-altering principle of self-soothing your small injuries matters above all things.
Again, spouses are their own people and there is a degree to which the spouses of the powerful have a right to their own independent existence. But that right is not absolute and appearances matter for persons whose power is at least in part dependent on the perception of some level of fairness and impartiality. If, to paraphrase John Roberts’ confirmation testimony, Justices are umpires who interpret the strike zone within the established rules of the game, you can’t have the umpire’s wife sitting behind home plate wearing one of the team’s jerseys and waving a pennant. No one would find that acceptable. Yet, somehow, its okay for Ginni Thomas to advocate for overturning the election and for Martha-Ann Alito to fly symbols associated with Stop the Steal?
It reminds me of how Trump gets excused from behavior that would get him fired as the fry guy at McDonald’s but somehow is okay because he simply wants to preoccupy the most powerful office in the world.
Supreme Court Justices have cushy jobs that afford them power and influence, as well as a comfortable living (and, it seems, access to all kinds of side bonuses). They have these jobs for life. It is not unreasonable to want them, and their immediate families, to behave with some level of decorum, respect, and restraint.
But, of course, all this shows that lifetime appointments are a bad idea and that we need to install time-delimited terms.
And let me conclude by quoting myself from last year:
Let me stress that there is nothing wrong with insisting that having as much power as SCOTUS Justices have that it is reasonable to ask for certain accommodations. After all, it is not like they are being drafted. They can always say no if the terms are too steep. They are neither demigods nor philosopher-kings. They are public servants, but at least some of them have forgotten this fact.
I would note that I am asking for certain norms to prevail, which intersects with some recent discussions (such as in the comments to this post). But I would also take the opportunity to note that structural conditions shape the development and evolution of norms. Lifetime appointments, for example definitionally create the circumstances wherein norms to constrain behavior are likely to erode. This is especially true when the practice of seeking multi-decade appointments comes into play (which is itself a norm that developed as a means to exploit the rules).
Some related posts of mine over the years:
A common theme I’ve seen in criticisms of this is “Imagine the outcry from conservatives if Sotomayor or Jackson’s husbands were to fly an ‘all lives matter’–especially if they were hearing cases to do with the police.” I believe for a fact that we would be hearing an outcry on this.
And I know that’s as a fact because we are currently seeing it here in the context of multiple Trump trials. All of our conservative commentators have advanced the idea that there is no way that Trump can get a fair trial because of the known political leanings of some of their family members (most recently accusations made against Justice Merchan’s daughter who is a political consultant).
If they seriously believed that to be the case, there could be no defense of either Thomas, whose wife is a high-ranking political consultant, or Alito for this type of signaling.
It’s not that they can’t see it. They’re reveling in it. As you note, “structure”, lifetime appointments and the lack of a 2/3 D majority in the Senate, mean there’s nothing we can do about it. And they’re rubbing our peon noses in that fact.
@gVOR10:
This, from the Lithwick/Stern commentary is key…
Both Alito and Thomas have made public comments in recents months that make clear that their fee-fees are the most important consideration of all. It’s simply not enough that they have claimed power over our lives, sometimes through precedent defying rulings. They MUST be respected for it.
Self-soothing is at the heart of it and the egotism is breathtaking. They want to be our overlords and they want to be loved for it both.
@gVOR10: You are correct. I am defaulting to benefit of the doubt when none is warranted.
I have zero respect for SCOTUS at this point. They routinely engage in behaviors that would get their staff canned. Heck, I couldn’t even accept a pen from a drug salesperson and these guys are accepting gifts worth hundreds of thousands dollars. On top of that add in the trend of naming judges as young as possible, especially at the lower courts where they have been naming people in their 30s. It’s still a lifetime appointment. In your 30s you can be plenty book smart but you don’t have the life and judicial experience to merit and carry out lifetime appointments in jobs with so much authority and little responsibility. Even less accountability. They know they can’t be impeached.
Steve
“The mere impression of political opinion can be a problem, the ethics experts said. ”
LOL You mean like Biden contributor Judge Merchan and his innocent little daughter evilly attacked by……..oh, wait, his bald faced, mega-money raising political partisan daughter.
Write us a piece when you acknowledge the clown show, and tragically destructive to our legal system, prosecution brought by Bragg and you might have credibility. Even CNN, and wonder of wonders, MSNBC, realize what a sham that is. Your selective outrage amuses.
No, the Judge should not have let his wife do that. Even if she was called a c***t, among other incivilities. But as I said, your selective outrage destroys all cred.
@Jack:
Thank you for proving my point Jack.
Any chance you can provide a link to help back that up? I just did a google search on “CNN Sham Trump Trial New York” and didn’t find anything beyond Republican and MAGA guests on CNN shows calling the trial a sham. That doesn’t feel like the same thing.
Pot, meet kettle.
Wait, I thought taking things personally and caring what people say to you was the quality of a “snowflake”–you know the things “pearl clutting beta cuck libs do”–are you saying that feelings matter again? Good to know.
Now, don’t everybody get their panties in a bunch over this.
White Americans — especially conservative White Americans — have an inherited generational sense of exclusive ownership of the country, of the society, of the cultural norms THEY deem appropriate and acceptable. And they guard that exclusivity with an uninhibited outward expression of their political and ideological views and, sometimes, with violence. An explicit demonstration of this is the January 6th attack on the Capitol.
Another aggressive, more frequent and common example are the many “F*** Joe Biden!” t-shirts and ball caps that Trump supporters proudly and defiantly wear out in public. I see them here in the Texas Hill Country all the time. And here is where I get to the Alitos flying an upside down American flag outside their home. Brazenly. Defiantly. Almost as a challenge.
I wouldn’t dare publicly display any type of “F*** Trump” apparel, or bumper sticker, or flag, or any other message medium. I’m a Black man; I know my limitations and boundaries. My Place. I am acutely aware of the probable response I would elicit here in Texas. The likely and foreseeable consequences are not worth the trouble.
The Alitos did not — DO NOT — have that sense of “I better check myself.” Nope. Just like the majority of self-proclaimed “patriotic” White conservatives, they believe they OWN this country; America was built BY them and FOR them. The perception of exclusiveness — of DOMINANCE — curbs the requisite awareness to even countenance the possibility of repercussion and consequence.
Trump demonstrates immunity from consequences daily. So, why should they feel restricted or threatened by laws, rules, and norms? Who gon’ check me, boo?
@Jack:
Are you drunk? That rant was erratic and incoherent, even for you.
Is it just a thing to blame-the-wife now? Menendez does it, Thomas does it, Alito does it. I’m shocked Trump doesn’t do it. Like, Jesus Christ, these men are completely pathetic.
@Matt Bernius:
There you go! You’ve conclusively proved that our resident trumpers are arguing in bad faith! At long last!
😉
@MarkedMan: To be fair, “bothsiderism” is a challenge for everyone. Now that I am finally done with the research project that I have been working on for over a year, I have to write a post about that
@MarkedMan: To be fair, “bothsiderism” is a challenge for everyone. Now that I am finally done with the research project that I have been working on for over a year, I have to write a post about that
I especially liked the way Justice Alito threw his wife under the bus, ran over her, then backed up to see if the job was done.
@al Ameda:
except the bus has literally no weight. Dear Wife Alito will suffer no repercussions, and everyone knows that Alito himself will suffer no repercussions.
Unless they vote that a president has absolute immunity, and then Biden launches an airstrike, and honestly that doesn’t seem like a Biden thing to do.
Our founders, in their infinite slave-owning, patrician wisdom, created a branch of government where the heads have no accountability.
I assume Justice and Dear Wife Alito are having a big laugh about all of this.
Alito will go down in history as the worst justice of a times. His jurisprudence, if that’s what one to call it, is to always stick to liberals with no consistency of legal belief. At least Thomas, especially in his first decade brought an articulated belief, and though I totally disagree with it, at least it was somewhat understandable. (However, with the gun cases, Thomas has really screwed up his originalism doctrine).
@Gustopher:
I don’t doubt that. And, it was probably a stunt double that paid the price.
Alito no longer has to, or bothers to, conceal the fact that he is a radical conservative Christian activist. This is Alito’s Court now. Chief Justice Roberts is a kind of Mikado – he has all the trappings of power, the appearance of power, yet it now seems that his time has passed.
@al Ameda: I seriously doubt the Alitos are laughing this flag obscenity off. They could, if they weren’t the thin skinned snowflakes they have shown themselves to be. Sammy, like trump, just can’t help wallowing in his grievances when he feels done wrong. He is spit sputtering indignant and highly offended, again, that some would dare besmirch his name. Mary Alice has taken to bed with a serious case of the vapors , clutching her rosary and lamenting the abject unfairness of it all! Cut and scene.
@al Ameda:
I think that’s the absolute hilarious part of it. Roberts is every bit a reactionary as Alito, he’s just got a more soothing demeanor. I’m pretty sure that he relished the power of his office while he had it. It has to quietly gall him that Alito has usurped his power. Alito’s Dobbs leak killed any doubt in my mind that Alito is fully in control over there.
@Matt Bernius:
I’m laughing. You did a Google search. Well isn’t that nice. And kindergarten-ish.
Both network’s “legal analysts” (heh), hired to trash Trump 24/7, have been incredulous as this case has progressed. Culminating with anchor Anderson Cooper exasperated with Michael Cohen, the star witness, who basically perjured himself and eviscerating the very core of the case.
Keep whacking off if it suits you.
Is there an explanation about why this was published now? If I’m understanding the events, the flag was flown in 2020. This doesn’t seem like a story that requires deep investigative journalism. So I’m curious about why now. Note, I’m not suggesting any [adjective] motives. I’m truly just curious.
On a related matter, Justice Roberts gets a lot of flack for not controlling “his court.” What control does he have to exert? I’m no SC expert, but my understanding is that he doesn’t really have power to do much of anything to the other justices. Note, this is not a defense of his judicial philosophy, rulings, or anything of the sort. Rather, it’s just not clear to me what exactly he can do to “reign in” the other justices.
I suspect Alito’s BS cover story is deliberately calculated to offend. A form of BS which is so transparent it is essentially a raised middle finger, an expression of contempt, not an excuse. As DeD put it so well: “Who gon’ check me bro?”
Alito has rendered himself immune to shaming.
I wonder if the election is close, whether Uncle Thomas and the rest would try to get Biden and the sleepy guy to bid for the White House, like the Praetorians did with the throne Didius Julianus acquired.
@Jack:
That’s cool. I take it since you didn’t object to anything else in my post, you agree with all the other points. Rock on, great to see we have alignment on the rest.
And hey, yeah, I didn’t spend much time on it. I kinda expected the person making the claims to back them up…
Ok, see you added some additional details there, which helped. So using those I was able to come up with the following:
https://www.foxnews.com/media/anderson-cooper-admits-absolutely-doubts-cohens-testimony-jury
and
https://www.foxnews.com/media/legal-experts-hammer-stormy-daniels-testimony-trump-trial-disastrous-responses-will-backfire
So both networks aired analysts who identified challenges with Cliffors (ne Daniels) and Cohen’s testimony. Cool. That is a potential issue.
I’m curious, if that’s proof that a “Biased” Network thinks that the trial is going badly for a given side… How am I supposed to take this segment from Fox and Friends with an analyst discussing how Hope Hick’s testimony was “devastating” for Trump? Does that mean that EVEN FOX NEWS! understands the jeopardy the former president is in? Asking for a friend.
https://www.youtube.com/watch?v=ODEp78X_POc
Way to keep it classy! Also, under Alito’s wife’s rules, does this mean I’m allowed to start posting… I dunno “Lock him up” posts in response or suggesting that you need better hobbies? I mean, I know I’m not supposed to do it, but what you wrote sure was uncivil, so according to your rules I think it’s probably forgivable.
When I’ve suggested elsewhere that with the Federalist Society in the majority of the SCOTUS, Alito has really let his freak flag fly. But I meant it as a metaphor… Go figure, he took it literally.
On brand. Alito has been acting and sounding more and more like Tucker Carlson lately. Not surprising his household supports insurrection. MAGA hates America. Vile, dangerous, deplorable traitors.
I think there’s more to come on just what a C word Alito’s wife is. Maybe a lot like Ginni, only she keeps her head down and lords it over the neighbors?
Excellent post, Dr. Taylor. Gets at a lot of what bothers me about this. My husband put it pretty succinctly: you’d hope that a judge would have better judgment.
That our resident MAGA-types don’t have an issue with this is very problematic, as it means they’ve adopted the dangerous premise that it’s okay for justices to be overtly biased.
I am now of the opinion that both Alito and Thomas are so severely compromised they should leave the bench voluntarily, or be impeached.
@Jack:
If Merchan/his wife had hung an “Impeach Trump!” symbol on his house, I would say that he shouldn’t be presiding over the trial.
If one of Alito’s children worked for a company that did consultation work for Republicans, I would not be writing posts about it.
And do you mean this? Via NBC News: Judge in Trump’s New York case appears to have donated $15 to Biden for President in 2020.
I would prefer that he did not do that. If Alito gave $15 to Trump, I would not be writing a post about it (although I will say I hold SCOTUS Justices to a higher bar than state judges).
I mean, could we have some sense of proportion here?
What really breaks me here is the timeline. The upside down flag flying would be a bad thing after the election, but to be flying it on Jan 17, 2021 is insane. The house voted to impeach on Jan 13. Even pro-Trump folks in congress at this point were seriously shaken by the events of Jan 6, but not the Alitos. This is standard partisanship, it’s full bore MAGA weirdness.
No, Dr. Taylor, this is just you showin’ off your fancy pants lib college thinking. The answer is no.
@Joe: Sigh. I know…
@Steven L. Taylor: $15??? Please. I gave more than that to the homeless shelter last month. SMH.
@Matt Bernius: You’re feeding them again, sir. You are very good at it, and I know there’s a level of satisfaction, but….