When Will Democrats Start Taking the Sam Alito Problem Seriously?
The justice understands that existing checks on his power are worthless. Do Democratic politicians?
Earlier this month, the New York Times reported on a pair of alarmingly insurrection-adjacent flags that, at various points over the past few years, have flown above homes owned by Supreme Court Justice Samuel Alito. On Wednesday, Alito responded to these stories in a letter to Democratic Senators Dick Durbin and Sheldon Whitehouse, who had argued that public displays of sympathy for Donald Trump’s attempts to overturn the 2020 election merited, at the very least, Alito’s recusal from other Trump-related Supreme Court cases, several of which the justices will decide sometime in the next few weeks.
In his previous statements to the Times and Fox News, Alito blamed his wife, Martha-Ann, whom he said flew the inverted American flag popular among Capitol rioters because of an argument with neighbors about the 2020 election. (In Alito’s initial telling, a neighbor had displayed a “Fuck Trump” sign shortly after the election, to which Martha-Ann objected.) Of course, flying a January 6 flag weeks after January 6 as part of a dispute about the presidential election is a statement that leads to a pretty obvious conclusion about its maker’s intent. It is unsurprising, then, that subsequent reporting from the Times suggests that this “my poor wife was simply signaling her distress” narrative is as bullshit as it sounds. As it turns out, the confrontation that Martha-Ann claims prompted her to hoist the flag took place in February—four weeks after the Alitos took the flag down, and six weeks after pro-Trump goons bearing the same standard broke into the Capitol hoping to murder Mike Pence.
Alito’s letter to Durbin and Whitehouse consists of three pages of similarly lazy and embarrassing lies, all of which are less remarkable for their substantive claims than for their sheer audaciousness. What the letter makes clear—or clearer than it already was, I guess—is that Alito understands that, in the American legal system as it exists today, no one can stop him from using his power however he wants, to benefit whomever he likes the most. Two lawmakers suggested that Alito should perhaps face modest consequences for his actions, and the thrust of his response was politely inviting them to eat shit.
Regarding the upside-down flag, Alito reiterated that he had “nothing whatsoever to do” with its, and claimed that he was “was not even aware” of its display, again, in front of his fucking house. He also claimed that he asked Martha-Ann to take the flag down, but that she refused, and that because she “makes her own decisions” and “has the legal right to use the property as she sees fit,” he was otherwise powerless to expedite the problematic flag’s removal.
Set aside, for a moment, the bizarre framing of his 40-year marriage in the language of 1L property law, as well the notion that a sitting justice who cares about maintaining the appearance of impartiality would respond to his Facebook-brained wife’s delusions with only a plaintive shrug. To the best of my knowledge, this letter marks Sam Alito’s first-ever acknowledgement of a woman’s right to make a choice without first securing a man’s sign-off.
Regarding the Times’s second story—this one about an “Appeal to Heaven” flag, a favorite of far-right religious activists, that flew above the Alitos’ beach house in 2023—Alito again pleaded both innocence and ignorance. “My wife is fond of flying flags. I am not,” he wrote, noting that the “use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.” This is roughly analogous to the loudest dolt in your freshman year sociology class pointing out that the swastika has a long history as a symbol of good luck, without acknowledging that in context, the far more readily-apparent message it conveys is support for the prominent fascist movement that last adopted it.
From there, Alito disposes quickly of Durbin and Whitehouse’s calls for his recusal. The Supreme Court’s Code of Conduct, which it reluctantly adopted last year in the midst of a deluge of unflattering ethics scandals, suggests (but does not require) that justices recuse themselves from cases in which their “impartiality might reasonably be questioned.” And in Alito’s sole, unreviewable judgment, neither vexillological incident meets this standard, which means he is “duty-bound” to participate in cases that allow him to maximize his preferred candidate’s odds of taking the White House in November.
Candidly, there is a limit to how surprised or upset I can get about Sam Alito being a MAGA chud, because Sam Alito has been a MAGA chud for a long time. What I find more unsettling is the reason Alito feels so comfortable bullshitting journalists and politicians alike: He understands that the few existing checks on his power are, for all intents and purposes, worthless. The Court’s “ethics code” was and remains a cynical PR stunt, and a Senate controlled by a bare majority of Democrats stands no chance of impeaching him. Chief Justice John Roberts, long portrayed by pundits as a principled defender of the Court’s integrity, is conspicuously silent about the howlingly obvious threat Alito poses to it. This is because Roberts is also a lifelong Republican who mostly agrees with Alito’s policy positions, and just wishes his colleague were more discreet about the tawdry conspiracy theory bits.
The failures of political leadership are not confined to the Court. The Biden administration, reluctant to cast aspersions on our beloved independent judiciary, reportedly has no plans to discuss the Alito story, despite his status as perhaps the most toxic member of the most toxic Republican-controlled institution the federal government has to offer. And although Democrats in Congress could use their oversight powers to try and bring the Court to heel, as of now, they appear very reluctant to do so: The chair of the Senate Judiciary Committee, Dick Durbin, mostly pleads with Roberts to act, and mostly in the form of asking for an “enforceable code of conduct.” In the meantime, Durbin has said he doesn’t “think there’s much to be gained” by even holding a hearing about Alito’s flag misadventures, raising the distressing possibility that a 79-year-old career politician is unfamiliar with the concept of “doing politics.”
It is good that the Supreme Court is historically unpopular right now, and good that voters generally support reforms that would limit the six-justice conservative supermajority’s ability to take away their civil rights. But the political establishment’s response to this story reaffirms that for as long as Democrats fail to back Supreme Court expansion, every other proposal out there amounts to rearranging good-government deck chairs on the reactionary Titanic. A better ethics code, more rigorous financial disclosure rules, a mandatory recusal policy—none of these exercises in paperwork will address the basic problem presented by Sam Alito, which is that Sam Alito gets to be one-ninth of our unelected superlegislature for as long as he feels like working. The only fix that matters is passing a law to make that fraction a little smaller.
Democrats like Durbin and Biden have spent their careers imagining the Supreme Court as operating in a world separate and apart from partisan politics. Unless and until they learn to treat the Court not as an institution entitled their respect, but instead as an opponent they must work to defeat, the only check on the Supreme Court will be occasional strongly-worded letters. It won’t be long before the recipients don’t even bother writing back.
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I do not propose to defend Justice Alito's use of flags to show sympathy toward the insurrectionists or the MAGA Right. I think he & his wife are entitled to their private opinions (see the 1st Amendment). He should not be allowed to express - or act on - his opinions from the Bench. That would violate any judge's oath of office.
What I object to is the MAGA Right - and the media - usurping the American flag and corrupting its meaning. As a Vietnam veteran, when Trump took the country down the path to autocracy, resulting in the Jan 6th attack, I flew MY American flag upside down, signifying - according to military tradition and the flag code - that the Union was in distress. That jesture has now been co-opted by the right, as has the flag itself.
And the mrdia pundits play along...