There is no better example of the current skewed state of checks and balances in American government than Justice Samuel Alito’s penchant for displaying insurrectionist symbols at his homes. That Alito can do this freely is but the tip of the iceberg that has already sunk the high court’s legitimacy. Let’s not forget about the rest of the iceberg: the lack of ethics policing for Justices Alito and Clarence Thomas, who’ve accepted enormously valuable benefits in luxury vacations, vehicles, tuition payments for family members (all undisclosed by the justices), and the adoption of a toothless code of ethics after decades of refusing to adopt any code of ethics.
But what still lies beneath the surface is the failure of all three branches of our government to do anything about the ethics disaster that has befallen the Supreme Court. And while all three branches are to blame—it is the Executive Branch, via the U.S. Department of Justice—that seems particularly paralyzed.
As first reported by The New York Times, an upside-down American flag—the symbol adopted by supporters of former President Trump’s lies about the 2020 election having been stolen—was flown at Alito’s house on Jan. 17, 2021, three days before President Biden’s inauguration and weeks after Jan. 6 rioters carried that symbol into the Capitol as they stormed it in an effort to stop the peaceful transition of power. On Jan. 17, the United States Supreme Court was still considering whether to hear a case about the 2020 election.
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Alito excused the flying of the flag by blaming his wife, telling the Times he had nothing to do with it but that she had flown it in response to a neighbor who had put up an anti-Trump sign. He later expanded on this excuse, telling Fox News that a person who lived at the property with the anti-Trump sign had gotten into a verbal argument with Alito and his wife, calling her names, “including the C-word.”
A common indicium of guilt by people accused of crimes is their ability to recall with great specificity details they think are innocuous (e.g., “I was wearing my favorite pair of Bruno Magli shoes”) contrasted with an inability to notice incriminating details (e.g., the trail of bloody footprints leading from the murder scene). Similarly, Alito’s recall of the specifics of this incident with his neighbor seems at odds with his apparently having not noticed a symbol of insurrectionists being run up the flagpole of his own house. But what really hurts Alito’s claim that he knew nothing about the upside-down flag flown at his Alexandria, Virginia, home is the fact that a second insurrectionist flag flew at his New Jersey beach house two years later, in July, August, and September of 2023.
The second flag was the so-called “Appeal to Heaven” flag—or “Pine Tree Flag”— a historical flag from the Revolutionary War that, the Times notes, “is now a symbol of support for former President Donald J. Trump, for a religious strand of the ‘Stop the Steal’ campaign and for a push to remake American government in Christian terms.” Other displayers of that flag have included Speaker of the House Mike Johnson, who had it at his office. The “Appeal to Heaven” flag was also carried into the Capitol by rioting Trump supporters on Jan. 6. Evidence of the flag being flown at Alito’s beach house was provided by “[t]hree photographs obtained by The New York Times, along with accounts from a half-dozen neighbors and passers-by,” all of which indicated “that the Appeal to Heaven flag was aloft at the Alito home on Long Beach Island in July and September of 2023. A Google Street View image from late August also shows the flag.” The Times Visual Investigations team deserves a special shout-out for the Google Street View image evidence used against a justice who admires a 17th Century judge— Matthew Hale— who believed men could not rape their wives and who sentenced women to death for being witches.
That a sitting Supreme Court justice chooses to display his camaraderie with “Stop the Steal” believers who sought to violently stop the certification of a presidential election is morally appalling. Legally, it is a no-brainer that a judge with these sympathies must not sit in cases involving prosecutions of Jan. 6 rioters and those charged with interfering in the 2020 election, including defendant Trump. Indeed, a federal law— 28 U.S.C. section 455— specifically requires that “any justice, judge or magistrate judge of the United States” shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Under this law, Alito— like Justice Thomas, whose wife is a witness in the Jan. 6 uprising— must be disqualified in any cases touching upon Jan. 6. These cases include a pending case before the high court in which the definition of “obstruction of justice” as it applies to Jan 6 rioters is to be decided, as well as the case in which Trump argues he is entitled to “presidential immunity” that would shield him from the charges brought by Special Counsel Jack Smith. But neither Alito nor Thomas is likely to be disqualified – they certainly will not recuse themselves – because of the failures of all three branches of government to protect and restore the legitimacy of our nation’s highest court. The Judiciary, Legislative and Executive branches all have tools that can be applied but aren’t being used.
The Judiciary, as led by Chief Justice Roberts, could seek to police the justices. While there are obvious drawbacks to self-policing, that doesn’t mean it can’t be done. All manner of organizations, including government agencies, seek to police themselves through internal investigations and, in the case of government agencies, offices of inspector generals. Courts in particular have chief judges that can exert strong influence over the more junior judges on a court. Traditionally, the Chief Justice would be able to sit down a justice that is going astray to straighten them out. Courts can even conduct their own investigations, as Roberts attempted to do with his investigation of the Dobbs leak. But the judiciary has done none of this and judging from his track record, Roberts appears to be completely incapable of mustering the leadership skills to manage his own court, much less reform it.
Congress could also forcefully police the high court. It could hold hearings at which justices could be subpoenaed and made to give testimony under oath about their potential biases,acceptance of gifts and failure to disclose these types of benefits. Through the power of the purse, it could also impose financial sanctions. Salaries could be cut and withheld, as could support services. Congress has made some effort to reform SCOTUS by way of the introduction of such bills as Senator Sheldon Whitehouse’s term limits bill. Whitehouse has even floated the option of Congress refusing to honor egregious Supreme Court decisions based on “false facts.” Such efforts are stymied not just by a lack of votes but by the paralyzing fear held by most politicians that wielding political power may be used against them if they lose the majority.
But when it comes to doing nothing about SCOTUS, the Executive Branch, as represented by the Justice Department, has no parallel. The DOJ could open civil as well as criminal investigations into the Justices’ acceptance of unreported gifts and other benefits which may have run afoul of laws governing taxes, conflicts of interest, and even corruption. Merely opening an investigation hardly means that a prosecution will be brought, but the act of investigating would shine some sunlight onto the high court and show the American people that “no one is above the law”—a phrase often invoked by Attorney General Merrick Garland.
Ironically, the “Appeal to Heaven” phrase on Justice Alito’s flag originated with another 17th Century thinker, the philosopher John Locke, “who wrote of a responsibility to rebel, even use violence, to overthrow unjust rule.” As explained in the Times report by one historian, the phrase is a “paraphrase for trial by arms….The main point is that there’s no appeal, there’s no one else you can ask for help or a judgment.” The phrase reminds me of the Chinese philosophical concept the “Mandate of Heaven,” which originated in the Zhou Dynasty (1046-256 B.C.E) and was used to justify revolutions and rebellions against dynasties when circumstances such as famine and flood indicated the emperors had lost the favor of Heaven.
Our society and government today treat Supreme Court Justices less as members of the highest court and more like higher beings immune from any normal constraints. In that way, they do resemble emperors and we would do well to remember what the ancient Chinese knew from experience: emperors can fall out of favor.
