Alito’s Flag Excuse Is a License for Partisan Grandstanding
Explaining away the issue by blaming his wife creates a loophole so big you could drive a pro-Trump billboard through it.
The Republican Party has held a continuous majority of Supreme Court seats for more than five decades, and the Trump administration allowed it to cement that control. Republican justices have responded to their quasi-permanent legal majority in two ways. One faction — led by John Roberts, joined occasionally by Brett Kavanaugh and Amy Coney Barrett — has sought to husband its legitimacy by making occasional concessions on low-priority issues and advancing the conservative legal revolution slowly to discourage the public from believing the Court is merely a partisan vehicle.
The other faction has responded more brashly, flaunting its partisanship, reveling in its impunity, and treating any question about the justices’ ethical shortcomings as an attack on the Court itself. The two leading spokesmen for this faction are Clarence Thomas and Samuel Alito. Both men have acted as overtly partisan agents of the conservative movement to the degree that they have flouted ethical guidelines. (Any judge in a lower position than Thomas would have been forced to resign by now.)
The New York Times reported last week that Alito flew an upside-down American flag at his home for some period of time in January 2021. There are two disturbing aspects of this episode. First, it appears to violate judicial ethics laws, which forbid judges from engaging in political activity. Second, and more unsettling, the activity in question (flying the upside-down flag) was widely understood at the time to signify an endorsement of Donald Trump’s false claim that Joe Biden stole the 2020 election.
Alito and his allies have offered several defenses, none of which engage either of the two central problems with his conduct.
“I had no involvement whatsoever in the flying of the flag,” Alito wrote 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.”
The whole defense revolves around the notion that Alito’s wife is entirely responsible for the flag and that her conduct in no way reflects upon him. National Review’s Dan McLaughlin has a column accepting this argument at face value, dedicated mostly to questioning the motives of the reporters and ethics experts who do not accept the wife explanation at face value.
There’s no reason to doubt Alito’s claim that his wife placed the flag in front of their home. Assume for the sake of argument that his account of the abusive neighbor acting without provocation is also true. Now try to reconstruct the scene and explain her actions. You’re the wife of a Supreme Court justice, and your neighbor has accosted you with insults because he blames your husband for Donald Trump’s coup attempt. Your response to this charge is to endorse the coup attempt?
Even more implausible is Alito’s claim that his wife can display a flag outside their home without implicating himself. 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. It also, for the same reason, defies logic. Alito’s wide-loophole defense calls to mind Arrested Development’s George Bluth telling his son, with a wink, “They can’t arrest a husband and wife for the same crime,” before being informed this is not true.
Bluth at least had the excuse of having “the worst fucking attorneys.” Alito presumably has access to competent counsel. But there’s not much of a defense when the facts are so damning for his case.
Whether or not it is true, or even plausible, is not the point. Alito and his allies have calculated that his position gives him not only the unchecked ability to define the Constitution any way he sees fit, but near-total impunity from rules forcing him to maintain the appearance of nonpartisanship.
McLaughlin, repeating the mantra conservatives have used to justify Thomas’s string of ethical violations, insists the criticism is merely designed to “delegitimize their decisions and lay the groundwork for radical changes to destroy the Court in its longstanding form.” If revelations of Alito’s coup endorsement do delegitimize the Court or lay the groundwork for reform, it is not the doing of the reporters who brought it to light. It is Alito’s own arrogant belief that he can act in such a nakedly partisan fashion under the banner of dispassionate judicial reason and nobody will ever try to limit his power.