The Alito flag scandal and the supreme court’s ethics problem

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An upside-down flag is meant to signal distress and has been used as a sign of protest by both the left and right.

The problem with this particular upside-down flag was timing.

This was the photo taken on January 17th, 2021.

So far, Justice Alito is refusing to recuse himself from all cases that involve January 6th. So, as America prepares for a number of Supreme Court rulings to be handed down this month, is this further proof that the highest court in the land has an ethics and bias problem? I'm Jonathan Friedland, columnist at The Guardian, and this is Politics Weekly America.

So he was appointed by George W. Bush during the Bush administration.

Amanda Marcotte is a senior writer for the Salon website. She writes their twice-weekly politics newsletter, Standing Room Only.

And even back then, his appointment was very controversial. Judge Alito is one of the most accomplished and respected judges in America.

That gives us a very good sense of him, the man, and obviously came to a lot of people's attention when the Dobbs ruling overturning Roe v. Wade was made public.

In a highly, indeed, as far as I can tell, utterly unprecedented leak from the Supreme Court, Politico has obtained what they say is an initial draft majority opinion written by Justice Alito, showing the Supreme Court striking down Roe v. Wade.

So we know he's conservative, but let's get to this thing. that's put him in the newspapers. It surfaced in a New York Times report in May that they talked to some of his neighbors about this flag. So just tell us what we know about the flag and what its meaning is.

Yeah, so he and his wife, well, he blames. his wife, got into arguments with the neighbors over January 6, over the neighbors putting out signs, basically saying they disagreed with Trump, trying to, you know, overturn an election.

According to the Times, a neighbor said the flag was there for several days and that Alito's.

wife, Martha Ann, was in dispute with another homeowner who displayed an anti-Trump sign with an expletive, which offended Martha Ann Alito. The Alito household had a flag out front of it. that was the upside down American flag, which is traditionally used as a symbol of distress, but had been adopted by pro-coup forces and January 6 people to sort of signal support for overthrowing the election. So the whole idea is the country's in distress, we're entitled to end democracy, to sort of quote, unquote, save it, even though what are you saving if you destroy democracy, right? And so, by hanging the upside down flag outside of their house, the Alitos were functionally signaling support for January 6, the insurrection, and, you know, the overall anti-democratic politics that it represented.

And there is a history to flying the American flag upside down in America. Some anti-war protesters going back against the Iraq war, against the Vietnam war, would do that. It was associated with the left, but it now has this link to the almost the insurrectionist right. And at first there was this claim by Alito that it was about a very specific dispute with, you know, a specific set of neighbors in their home in Washington. But this other twist has come where you've got to believe.

Yeah. I mean, he hung at their vacation home. Again, he blames his wife. So that's the official story. There was an appeal to heaven flag hanging out in front of their vacation home.

conservative Christian nationalist movement.

In a lot of ways, this is even more alarming, in part because they don't have the excuse of them fighting with the neighbors, but also the appeal to heaven flag is like a deep cut because it's a new apostle flag. That's kind of who it's most associated with, which is this Protestant group of Christian nationalists who believe that secular American democracy needs to be replaced with Christian theocracy, basically.

And the point about the flag is it was carried by some of the people who stormed the Capitol in January 2021.

Yeah. And the people that carry that flag, it tells you a lot about the notion that the MAGA movement somehow just believed that the election was stolen, and that's why they felt the need to storm the Capitol. I don't think that's entirely true. I think that waving the appeal to heaven flag shows that the real agenda of the insurrectionists was. they did understand on some level that this was an attempt to overthrow an election that they just didn't like the outcome.

So, yes, it's almost heartwarming unity that they're opting for. So that's the position. He says it's his wife who put up these flags, you know, in a neighbor dispute. in the first case. You don't really have that excuse in the second.

They have a number of cases related to the attempted coup and the January 6th insurrection in particular that they're looking at. Justices will consider if the Department of Justice went too far when it prosecuted hundreds of rioters on charges of obstruction of an official proceeding. Some of them involve whether or not the people that stormed the Capitol on January 6th should be prosecuted the way that they have been. And he, during the questioning, like the arguments in front of the court, used questions to sort of express views that suggested he was sympathetic to the January 6th insurrectionists.

Let's say that today, five people get up one after the other and they shout, either keep the January 6th insurrectionists in jail or free the January 6th patriots. And as a result of this, our police officers have to remove them forcibly from the courtroom. And let's say we have to, it delays the proceeding for five minutes. Would that be a violation of 1512c2??

And then there's another case where Donald Trump has been saying that he should be, he's arguing that he has blanket immunity from any kind of charges for crimes he committed while in office, including crimes involving attempting to overthrow an election.

Special counsel Jack Smith is arguing that Donald Trump has never been above the law. Trump's lawyers argue that what he did to try to overturn the election results was part of his official duties as president and he shouldn't be prosecuted.

And for him to be like flying flags, suggesting these opinions, it's more than a little alarming. We want our Supreme Court justices to generally believe in the Constitution. And unfortunately for me, I feel like a lot of the discourse about this has been focused on the like impropriety of a Supreme Court justice having a partisan point of view. This goes deeper than the fact that he's just like pro-Republican. This is like.

Which is obviously a huge problem, given the Supreme Court's job is to enforce the Constitution, and so is a judge who doesn't believe in the law. I mean, all of this is a huge deal, especially this month, as we get those final few decisions from the court before the summer break. I mean, the normal remedy in a situation like this would be recusal. when a judge who is conflicted in such a way and has an opinion that might prejudice a case, they recuse themselves. They step back from that case.

He refuses to acknowledge that he has these opinions and that he expressed them publicly. He's blaming his wife. He's saying she's the one who did it all. Basically, you know, it's the dog. ate my homework.

And the wording is fantastic. It goes, as soon as I saw it, I asked my wife to take it down. But for several days she refused.

Yeah. And Sam Alito's entire public record is of a firm belief that women don't have very basic rights. They don't have a right to bodily autonomy. Again, when he was appeals court judge, he said women should have to get their husband's permission to get an abortion. And it's like if women are required to get their husband's permission for something so important and life changing, surely his wife has to obey him when he says you have to take that flag down.

Yeah. I mean, the surrendered wife movement suddenly goes very quiet at this point. But the and there is a precedent here, I mean, or, you know, almost a pattern, which is not so long ago. We were all talking about the views and associations of the wife of a different judge, Clarence Thomas.

Justice Thomas's wife, Ginny, backed efforts to overturn the 2020 election outcome, but has recently said she and her husband don't discuss their work with each other.

Well, let's talk about her, but also why nothing was done about that either.

So Ginny Thomas, Virginia Thomas, she has been a longtime Republican activist, which, in and of itself, is breaking decades and decades of Supreme Court tradition. And then, when Donald Trump started his coup, she was intimately involved. We have the January 6th committee in Congress found just piles and piles of text messages from her to Mark Meadows, who was the chief of staff at the White House. Ginny Thomas wrote to Mark Meadows, quote, Help this great president, stand firm, Mark. You are the leader with him who is standing for America's constitutional governance at the precipice.

So, and indeed, the whole argument rests on there being some very unlikely wall of separation in the family household, which is a bit of a stretch, to put it mildly. It does go to this issue, which people have been raising, which is for a long time, the Supreme Court was almost one of the few institutions that didn't have any rules binding it. It was enforcing rules for everyone else. Last year, the court did agree to be bound by a set of ethics rules, but did crucially hold back from making them in any way enforceable. So this is an ongoing thing.

Yeah. And when you kind of put those two things together, you can see how Alito and Thomas's ideology is sort of melding with the Supreme Court's refusal to hold themselves accountable at all to democratic systems. Like, what is the sort of underlying premise of Donald Trump's coup and the insurrection and things like the appeal to heaven flag and stuff like that? It's that there should be this far right leadership in the U.S. that is above democracy, that is above, like that is not accountable to the people, that is just ruling over the rest of us, whether we like it or not.

And obviously, extremely good news for the man who would be president again, Donald Trump, to know that there is a court there that is on board for even some of his most extreme views. You've written that. all of this, though, moves beyond just the business of the court, that the notion of even just the imagery of these flags are part of a trend of what we would once have called conservatives. But we should really say the right toying with your words, fascist peekaboo, and how there is. there are a few examples of this, of mainstream Republicans flirting with using the language of fascism.

I mean, Donald Trump, does it all the time. What was he? They put up a video the other day, right, that said, the unified Reich. Former President Trump, ignoring questions about a controversial video, posted to his truth social account Monday. It's since been deleted, but not before the Biden-Harris campaign posted a screengrab of it.

And I mean, that's an amazing case, isn't it? Because it's the language of Nazism, the Third Reich and so on. And there they were using it about America.

Yeah, and this goes back all the way to the beginning of the first Trump administration. Trump supporters like the OK symbol. They called it. they would say that it was a white power symbol, like the. when you do the OK with your hands.

It does raise a question of what people can do about it. Our colleague Margaret Sullivan wrote that, you know, the media play a role here because they just absorb this as if it's normal stuff in a campaign. And yet if you do call it out, as you've said, then in a way you've played into their game, because they can say, look at all these hysterical liberals getting, you know, over, worried about things that they shouldn't be. I mean, what is the way to respond to this when this is all part of a very well documented lurch to the right?

Well, I think it helps to have a long memory. every time Trump says Hitler stuff or does Nazi stuff like, stop treating it like a one off occasion. He says it was an accident. He said unified. right.

Yeah, I know we've got to the stage now where oopsies has become part of our political vocabulary. Amanda, as you know, because you've been here before, we do like to ask our guests a what else question, usually something completely different. In this case, we're going to be sticking with the law and with trials. after we got the verdict in that pretty important one in a Manhattan courtroom last week. Donald Trump convicted on all 34 counts against him.

In opening statements, prosecutors described Hunter Biden as a drug addict who lied on a federal form in order to buy a gun in 2018.

What do you make of all this? And particularly, what do you think its political impact, if any, is going to be?

Donald Trump broke the law. He conspired against the United States. He conspired against the voters. And you're seeing Republicans just hair on fire running around defending this man. And I think what's interesting about this is that you're seeing no resistance from Joe Biden.

Yeah, I think I suspect that's right. The exception being those people whose minds are already made up. In other words, people who are dug in already, all in for Trump. Maybe this will be another mark against Biden, but they were already in that place anyway. And obviously people who are pro-Biden are going to view this case probably in the way you describe, which is just as a part of a vendetta.

Thanks for having me.

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