More Alito Flag News

The “Appeal to Heaven” flag flew outside the Alitos’ New Jersey vacation home last summer, along with a “2022” Phillies flag and a Long Beach Island flag.

Nikki Haley — I know this will shock people — has now endorsed Donald Trump. Polling suggests the courts are a major reason people vote for him.

ETA: Of course, today’s opinion announcements include two Alito opinions, one that Rick Hasen summarizes as “Justice Alito for Republican Justices, over the Dissent of Democratic Justices, Rewrites Racial Gerrymandering Standards to Help White Republican States.” The other is a criminal law opinion that was also 6-3 with Jackson and Kagan in dissent, but Sotomayor & Gorsuch switched places.

The NYT reported that in January 2021, after January 6th, there was an upside-down flag flying over the Alito household for multiple days. 

Alito said his wife put it up for a short time in response to anti-Trump criticism. He informed a friendly Fox News reporter that the criticism included nasty language targeting his wife. This led to a "Stop the Steal" flag incident. 

Democrats and Republicans spoke against spoke against this sort of thing:

“It’s not good judgment to do that,” Graham told reporters. “I don’t know what role — he said his wife was insulted and got mad. I assume that to be true. But he’s still a Supreme Court justice. And people have to realize that moments like that — to think it through.”

Sen. Mitt Romney, R-Utah, said he hasn’t delved into the Alito matter but added, “Obviously it looks very unfortunate, and we ought to take a good look at it.”

Sen. Sheldon Whitehouse, D-R.I., the second-ranking Judiciary Democrat, said “we should investigate” the Alito incident. He said that it was “too early to tell” what a probe should look like but that it should “obviously” involve subpoena power, if necessary.

(Whitehouse on Laurence O'Donnell's program tonight reminded us that the recusal statute is a law. It is not just akin to the voluntary ethics guidelines. Justices do not just have life tenure. They serve for "good behavior." Alito and Thomas failed that test clearly.)  

The Chairman of the Senate Judiciary Committee, Sen. Dick Durbin, spoke out and said Alito must recuse from 1/6 related cases. A big one -- the Trump immunity case they had no business taking and might have done so with only four votes -- is pending. That's it from him:

Durbin:  “No, we haven’t got anything planned. I think he’s explained his situation. The American public understand what he did,” he said. “But I don’t think there’s much to be gained with a hearing at this point. I think he should recuse himself from cases involving Trump and his administration.”

Sen. Durbin has recently made noises about bringing back blue slips for appellate nominations. He's a pill. 

Dahlia Lithwick underlines we all must make this an issue. Nonetheless, the Democrats in the Senate have special power, including holding hearings and submitting subpoenas. See also, this proposal to bring light to the shadow docket.

President Biden has honored has honored the 200th judicial confirmation. Which is great. But, as he says the work is far from over, especially in certain unbalanced circuits. And, Trump was able to nominate three justices. 

I was not alone in wondering why we are just starting to hear about this now. But, it now seems that there was more to the story. We should also recall that the context here is years of Alito's quite public, including speeches, conservative religious views. The issue here is not, as one liberal law professor suggested, a "libertarian" or "Tea Party" mindset alone. No, contrary to his attempt to clarify, we cannot quietly include some "plus" here. The plus is quite notable in understanding the Alitos' beliefs and actions.  

[Jack Jenkins, a religious news reporter, wrote the article.]

NYT followed up with an "Appeal to Heaven" flag later being flown over the Alito summer home various times for at least two months. He didn't supply an excuse for that one. The flag was flown during the 1/6 insurrection along with the upside-down flag. It has Christian nationalism connotations. 

Alito has the right to believe these things. We are quite aware that he is a "Fox News" justice. His conservative religious beliefs have also not been hidden over the years. These beliefs have clear influences on his judicial decision making in troubling ways. It is not “unethical,” however, or overall, a violation of “good behavior.”

[ETA: Added the last few sentences. I say “overall” since it can be argued there is a level of judicial extremism here that crosses the line. The crude form of activism that overturned Roe v. Wade is part of the lack of humility opposed here.]

But there is an obligation to avoid the appearance of bias. The first NYT article notes that "employees" of the Supreme Court broadly are prohibited to express partisan views (including bumper stickers). 

I am wary about the outer limits of that rule. Why should court marshalls be prevented from putting stickers on their cars or promoting political causes? Or a typist or cleaning lady?

A justice is another matter. We saw this when Justice Ginsburg got in trouble saying how horrible Trump was before the 2016 elections. They are supposed to be nonpartisan. For instance, no partisan political campaigning for one side. You can be a Philly fan. 

I wrote Justice Sotomayor a letter a few years ago regarding the lack of bilingual transcripts. For instance, I think Puerto Rico-related cases should have a Spanish translation available. She thanked me for my concern and pointed to a FAQ section of the SCOTUS website written in multiple languages. 

But, she said she could not personally voice an opinion. I thought that was rather strict. But, it underlines the ethical rules in place. Partisan flags, especially related to ongoing litigation of national importance, should be avoided. 

[I wrote letters to multiple justices over the years. Only two wrote back. The other one wrote back some time ago.]

Chris Geidner has called out Chief Justice Roberts and other justices to pressure Alito to recuse. Who knows what sort of pressure is being done behind the scenes.

Nonetheless, a guy who won't show up voluntarily in front of the Senate Judiciary Committee or willing to explain (like Kagan and Jackson have) why he recuses is not showing much willingness to apply pressure.  

Dahlia Lithwick's statement that we as a whole have a role underlines the breadth of the solution. When President Biden used a commission to delay and push aside concerns about the Supreme Court, the responsibility was not his alone. 

I have said this before. I will say it again. Strict Scrutiny Podcast respects multiple people on the commission. They had one or more people on their show. Why not have them on to discuss the commission? No. They sneered at it. 

The January 6th Committee shows the potential value of a congressional investigation. The Democrats had control of Congress. They still control the Senate. They could have had hearings parallel to the subjects covered by the commission. 

A strong and vocal minority of progressives are pissed off about the courts. It has to be made a clear political issue, one that does not just come up now and then for us to shake our heads regarding the latest Alito or Thomas news. 

We are not talking about snapshots. Roe v. Wade being overturned is connected to Christian Nationalism and Trumpism. The New York criminal trial is winding down with closing arguments next week. If Trump wins, Alito and Thomas will likely resign for younger replacements. 

Michael Cohen was prosecuted partially for these crimes. The National Enquirer company agreed to a non-prosecution agreement. Trump so far received no consequences.

Meanwhile, the D.C. case is being held up by 1/6 fellow travelers and people who enable them. And, we await to see what Alito's first opinion of the Court will be. 

Plus, what new "WTF" moment will arise?