The upside-down U.S. flag flying at the home of Supreme Court Justice Samuel A. Alito Jr. — only days after the Trump-inspired insurrection on Jan. 6, 2021 — shouldn’t come as much of a surprise. After all, Alito has been doing the moral equivalent for years —and at the office, which is way worse.
In oral arguments, in speeches and in opinions themselves, he is the Fox News-iest of justices, most likely to pick up on conservative media talking points and most predictably partisan when it comes to his votes.
Of course, the flag flying was grossly improper, an apparent endorsement of the “Stop the Steal” movement. Alito himself seemed to recognize this as he blamed his wife for the oh-say-can-you-see moment, asserting it flew just briefly after a neighborhood dispute escalated into a profane personal attack on Martha-Ann Alito.
She should apologize; whatever the provocation, justices and their wives should behave in a way that is above reproach. This wasn’t. And the justice himself should provide more information about how long the flag was up, how quickly he intervened, and why.
That would help the public assess whether Alito should heed calls from Democrats such as Sen. Dick Durbin (Ill.) and House Minority Leader Hakeem Jeffries (N.Y.) to recuse himself from the election-related cases now pending, one involving former president Donald Trump’s assertion that he has absolute presidential immunity from criminal prosecution for his official acts, the other concerning the scope of an obstruction statute under which Trump has been charged.
I’m not there — not yet, although The Post’s reporting on neighbors who said the flag was upside down for two to five days gives me pause. That’s not “briefly,” as Alito said in a statement, or “for a short time,” as he told Fox News. He should have gotten home from the office, seen the flag and asked his wife to take it down — right away. Dawdling for days, if that’s what happened, is hugely problematic.
Still, there should be a high bar for recusal, especially when it comes to Supreme Court justices; unlike lower-court judges, they can’t simply be replaced by another jurist. So Justice Clarence Thomas should have recused himself from deciding the pending Trump-related cases. But the involvement of Thomas’s wife, Virginia “Ginni” Thomas, in seeking to overturn the 2020 election results is far more extensive than what has been reported about Martha-Ann Alito.
Similarly, consider Justice Ruth Bader Ginsburg’s ill-considered statements before the 2016 election, when she labeled Trump a “faker” and said she “can’t imagine what the country would be with Donald Trump as our president.” Ginsburg’s remarks, for which she quickly apologized, were both more troubling than what we know of Alito’s conduct — after all, they came from her own mouth — but also less focused in terms of implicating a specific set of pending cases. In short, the Alito situation isn’t the no-brainer of liberal demands.
On a deeper level, though, the recusal standard that applies to all federal judges — can their impartiality reasonably be questioned? — hits home when it comes to Alito. Pretty much across the board, his impartiality can reasonably be questioned.
Last year, appellate lawyer Adam Unikowsky examined a decade of ideologically charged cases in which the justices were divided on standing, the legal doctrine about when a party can sue. Alito was an outlier among the justices. There were zero cases in which he found that a conservative litigant lacked standing and zero cases in which he found that a liberal plaintiff had the ability to sue.
Alito’s disdain for those with whom he disagrees — in particular those representing the Biden administration — is palpable, more than that of any other justice. Consider his interchange with the attorney representing the manufacturer of the abortion drug mifepristone during oral argument in March. “Do you think the FDA is infallible?” Alito demanded to know. “So you’re going to make more money,” if access to mifepristone remains in place, he asked, as though that was a terrible thing.
Likewise, in the oral argument in the Trump immunity case, Alito needled Michael Dreeben, representing special counsel Jack Smith, about whether Franklin D. Roosevelt could have been prosecuted for imprisoning Japanese Americans during World War II. This is questioning in the pursuit of point-scoring, not information-gathering.
And more than any other justice, Alito appears immersed in — and influenced by — a steady diet of conservative media. At oral argument in last term’s affirmative action case, Alito, probing the limits of how remote a claim to minority status might suffice to justify special considering, appeared to take a swipe at Sen. Elizabeth Warren (D-Mass.), offering up one example: “It’s family lore that we have an ancestor who was an American Indian.”
Last year, he was the sole dissenter when the court ruled that Texas and Louisiana lacked standing to challenge the Biden administration’s immigration enforcement policies, lamenting that it left states “already laboring under the effects of massive illegal immigration even more helpless.” Too much time watching Fox, perhaps?
It’s hardly surprising, then, that the Wall Street Journal editorial page has been his go-to forum. When ProPublica was preparing to run a story about Alito’s Alaskan fishing vacation and his use of a private jet flight courtesy of a hedge fund tycoon with business before the court, Alito wrote an astonishing prebuttal for the Journal, defending the free plane ride on the grounds that the seat would otherwise have been vacant. With the flag controversy, Alito’s journalist of choice was Fox News’s Shannon Bream, who reported on Friday that Alito told her that his wife hoisted the “Stop the Steal” symbol after a neighbor posted an anti-Trump sign near their house.
Justices are supposed to embody judicial temperament — virtues such as probity, restraint and moderation. Alito has a hard time with this. “Not true,” he mouthed during the 2010 State of the Union, when President Barack Obama called out the court for its ruling in Citizens United. He responds to criticism with an air of injured grievance.
At times he seems more culture warrior than sober-minded jurist. “If we are going to win the battle to protect religious freedom in an increasingly secular society, we will need more than … law,” Alito proclaimed in a July 2022 speech. Who is this “we”? Why is Alito a combatant in this “battle”? Note: This outburst came just after the court not only eliminated constitutional protection for abortion but also required states to provide funding for religious schools if they subsidize other private institutions and ruled in favor of a football coach dismissed for engaging in prayer on the field.
This is a justice in rightward motion. When Alito joined the court in 2006, his votes aligned closely with those of the new chief justice, John G. Roberts Jr. In recent years, though, they’ve diverged, with Alito trending measurably more conservative. One measure of justices’ ideological leanings showed Alito last year outscoring Thomas on the conservative scale for the first time in their two decades together on the bench.
The larger problem isn’t the flag flying at the Alito home. It’s the resolutely partisan banner under which he sails as a justice.
