Samuel Alito: What to Know About His Flag-Flying and Our Out-of-Control Supreme Court
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The Supreme Court typically hands down its remaining and most anticipated decisions of the term during the final weeks of June. This year, right before this all-too-important stretch in its calendar, SCOTUS found itself in a crisis about its own legitimacy, this time due to Justice Samuel Alito's questionable flag-flying and secret recordings of him and his wife.
According to a slate of recent reports, flags associated with the January 6 insurrection on the US Capitol have been flown at Justice Alito’s homes. Appreciating the gravity of this news, however, first requires understanding who Alito is and the role he plays on the Court.
Samuel Alito joined SCOTUS in 2006. Since then he has helped push the Court further and further to the right. It cannot be overstated just how conservative the Court has become.
Justice Alito is now, arguably, the ultra-conservative Court’s most conservative member. He’s long been a champion of the religious right, consistently ruling in favor of expanding religious liberties and access to guns, in addition to making it harder to protect the environment. He also authored the 2022 majority opinion to overturn Roe v. Wade, which eliminated the constitutional right to an abortion.
Alito is not a stranger to controversy either. He visibly disagreed with President Obama during his 2010 State of the Union speech, when justices are generally supposed to sit stoically during such occasions. ProPublica discovered that Alito took an undisclosed luxury fishing trip that was paid for by two Republican donors, one of whom has repeatedly had business go before SCOTUS in the years since that trip. And, while it’s still unknown exactly how this happened, Alito's draft opinion overturning Roe was leaked to the public before the case had been officially decided — a stunning and extremely rare breach of trust and tradition.
At other times and to varying degrees, Justice Alito has undermined the notion that SCOTUS is supposed to stay above the partisan fray. Even so, the revelations from the past several weeks suggest his behavior has reached a whole new level.
Last month, for example, it was first reported that an upside-down flag flew outside of Alito’s Virginia home in the days after a violent mob of outgoing-president Donald Trump's supporters attacked the Capitol on January 6, 2021. The upside-down flag has been widely adopted by the Stop the Steal movement, which falsely argues that the 2020 presidential election was stolen from Trump.
When news broke about the flag, Alito denied being involved and blamed his wife, Martha-Ann Alito. In a statement provided to The New York Times, he said, “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” According to a New York Times investigation, however, the timeline of the justice’s account doesn’t totally add up.
Then it was revealed that, two years later, another problematic flag was flown at Alito’s beach house in New Jersey. This time it was an Appeal to Heaven flag, another symbol embraced by January 6 rioters and Christian nationalists — those who want to elevate Christianity in government and public life.
After news came out about the second flag, a progressive activist says she caught Justice Alito on tape when he said, “People in this country who believe in God have got to keep fighting for that, to return our country to a place [of] godliness,” agreeing with the activist when she echoed a Christian nationalist view. Alito's wife was also apparently recorded, suggesting both that her husband doesn’t control her and that she had to restrain herself in recent days from protesting an LGBTQ+ Pride flag in her neighborhood with a Sacred Heart of Jesus flag.
Even if Martha-Ann Alito is the one who put up the flags, Justice Alito should not have allowed the partisan symbols to be repeatedly displayed at his homes. Or, at the very least, he should be taking responsibility for what they suggest about his ability to be an impartial jurist. Unfortunately, that is not what has happened; instead, it seems, Alito has forsaken his most basic responsibilities as a justice.
SCOTUS finally adopted an ethics code, last year, after it was made public that Alito went on that undisclosed fishing trip and that Justice Clarence Thomas also received gifts and travel from a different GOP donor. The ethics code makes it clear that justices should avoid political activity. It’s worth repeating, then, that both flags at the Alito homes were carried by the mob of Trump supporters who violently stormed the US Capitol in 2021 — and one of those flags was flown at the Alito's soon after the attempted insurrection.
In addition, justices should recuse themselves from cases when their impartiality “might be reasonably questioned.” Even the appearance of impartiality should — according to the ethics code that all nine justices signed onto — be reason to step aside from weighing in on a case.
That’s why Democratic lawmakers called on Justice Alito to recuse himself from two major cases currently before the Supreme Court: one brought by a man facing charges relating to the January 6 attack, and the much anticipated case in which former president Trump is arguing that he should have “absolute immunity” from prosecution. Both cases are expected to be decided this week, though the backlog of pending cases before the Court has led to speculation that the justices could extend their term into July. The immunity case, in particular, could have massive implications for the presidential election, and Alito’s vote could tip the scales in Trump’s favor. But Justice Alito has refused to recuse himself from the cases, blaming his wife for the flags.
So here’s the rub: There is no real mechanism for enforcing the SCOTUS ethics code. Rather, there isn’t one that anyone wants to use. Congress has the constitutional power to check SCOTUS, but so far its members seem uninterested in doing so in a meaningful way. Congressional Democrats don’t seem poised to take tougher action on Alito, and President Biden also seems to want to stay out of it.
Which brings us back to our original question: Who is Samuel Alito anyway? Turns out he’s one of the most powerful people in America, with a lifetime appointment and the freedom to abuse his position, essentially, without consequence.
Supreme Court justices are supposed to call balls and strikes, soberly ignoring their political preferences to oversee fair application of the law. We can argue whether anyone can ever really shed their personal politics, but clearly, Justice Alito isn’t even trying to do so. He knows too well that the Supreme Court is immune from any real oversight or accountability.
I’ve previously written that the Supreme Court is a political institution. What’s remarkable about all this Alito news, though, is that it reveals SCOTUS has also, in some ways, divorced itself from democracy.
This all might feel dreadful — and, make no mistake, it is. We will all suffer under a system where justices and judges don’t act ethically. It’s going to take bold, structural reform to root out the rot in the Supreme Court. Right now our elected officials seem unwilling to do anything of substance about it, but this November, we have an opportunity to demand that they do.
It is critical that in this election we support and elect candidates who are committed to restoring the integrity of SCOTUS, who understand that a strong democracy requires a healthy judiciary. One election may not fully unwind the damage that’s been done to the Supreme Court, but it offers an important step forward that we can all help happen. And we really, really should, so that some day soon, when I'm asked who Samuel Alito is, I’ll get to say he’s someone who, like all of us, has to follow the rules.
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Originally Appeared on Teen Vogue
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