Justice Samuel Alito is enmeshed in a scandal that, typical of this political era, is in equal measure unsettling and absurd. Last month, the New York Times reported that for several days in the wake of the January 6 insurrection, the Alito family flew an upside-down American flag outside of their home in Alexandria, Virginia. The flag was widely used at the time by supporters of President Donald Trump who believed the 2020 election was stolen. Shortly after, the Times also reported that the Alitos flew an “Appeal to Heaven” flag—another flag commonly used by fringe elements of the American right—at their New Jersey beach house just last year.
From a legal perspective, this all posed the question of whether Alito should recuse himself from the various cases concerning January 6 and Trump’s attempt to illegally seize the presidency in 2020, some of which are pending before the Court now and some of which will be soon enough. In late May, Democratic Senators Dick Durbin and Sheldon Whitehouse wrote to Chief Justice John Roberts, requesting Alito’s recusal from those cases.
Alito has refused to recuse. He says that the flags were put up by his wife, who, he told the Times, raised the upside-down flag in response to neighbors who had displayed profane anti-Trump signs.
This explanation is, of course, ridiculous. There is no plausible reason that someone in January 2021 would raise an upside-down American flag in order to signal some sort of generic disapproval toward an angry neighbor. At that time, in this country, at a Republican’s house, displaying the flag carried by January 6 rioters a few weeks earlier meant exactly one thing.
The likely reality is that the Alitos and their neighbors got into a spat over Trump and the 2020 election. The neighbors put up anti-Trump signs to indicate their disdain for Trump, and one or both of the Alitos responded by raising an upside-down flag to indicate their belief that the 2020 election was stolen by President Joe Biden. Alito doesn’t want to admit that he and/or his wife believe an extremely stupid conspiracy theory, and so he lied about it. He even seemed to change his story in recent statements, no longer claiming that the flag was a response to his neighbors’ conduct, only that it was raised amidst a “neighborhood dispute.” His story also conflicted with later reporting by the Times, which found that many of the events he described as precipitating the hoisting of the upside-down flag actually occurred a month later, in February 2021. When you are appointed to a lifetime position, you don’t need to think too hard about the lies you tell, because you don’t really need to convince anyone.
This is not the first time we’ve seen this sort of belligerence out of Alito. Last year, ProPublica reported on Alito’s receipt of an undisclosed luxury vacation from billionaire Paul Singer, as well as his refusal to recuse himself when that same billionaire’s hedge fund later appeared before the Court. Alito responded—in the pages of The Wall Street Journal—by denying any obligation to disclose the vacation, and claimed that ProPublica was “misleading” its readers before he even saw the reporting. Intransigence, it seems, is part of Alito’s DNA. He writes not to address your questions but to express his outrage at your belief that you had the right to ask.
(SAUL LOEB/AFP via Getty Images)
This sort of defiance isn’t unique to Sam Alito. It is the hallmark of our political age. Donald Trump has built a career on it, and rebuilt the Republican Party around it. The real issue raised by Alito isn’t a legal one per se. It’s that even our most esteemed judges, the people we are meant to rely on to resolve our toughest legal issues, are breathing deep in the noxious fumes of our politics.
Trump spent his presidency lacing the federal judiciary with political radicals typical of his movement. Ideologues like Matthew Kacsmaryk, who has referred to gay people as “disordered.” Hacks like Aileen Cannon, who is currently doing her best impression of a defense lawyer as she oversees the case about Trump’s mishandling of classified documents. Big dumb idiots like James Ho, who has used judicial opinions to vent about cancel culture and accused his opponents of believing in a “woke Constitution.”
These judges are’t anomalies; they are the future of the conservative legal movement. Last year, the Times reported that if he returns to the presidency, Trump is looking to distance himself from the Federalist Society, the conservative legal network that had masterminded the judicial appointments in his first term. His concern was that some of those judges (and other legal officials) had been insufficiently loyal to his agenda, including his efforts to overturn the results of the 2020 election.
In the next Trump administration, there won’t be a place for anyone who has even a nominal concern for things like “rule of law.” When he’s trying to implement some flagrantly unconstitutional executive order, or escape criminal liability with some fanciful legal theory, Trump doesn’t want serious judges. He wants an upside-down flag flying loyalist.
Shortly after all of this flag news broke, The Washington Post disclosed that its longtime Supreme Court reporter, Robert Barnes, had been aware in January 2021 of the upside-down flag at the Alitos’ home, but that the Post decided not to report on it. Some onlookers were baffled that a news organization wouldn’t find a Supreme Court Justice’s household flying a partisan flag—let alone one endorsing an attempted coup–—to be newsworthy. But the Post was merely buying into a narrative that we’ve all been repeatedly sold: that the Supreme Court is an apolitical institution insulated from the ugliness of traditional politics, and that its justices are neutral arbiters of the law. They couldn’t comprehend Alito for what he actually is: a bitter partisan, willing to flirt with conspiracy theories if not outright embrace them.
That may have been more understandable in early 2021, before Roe was overturned, before the Court embraced an ahistorical theory of gun rights, before Clarence Thomas was revealed to be the consistent beneficiary of billionaire largesse. But in 2024, with another Trump term potentially looming, we all need to see Sam Alito clearly, because there are more of him coming.
