When Supreme Court Justice Samuel Alito was caught raising an upside down American flag outside his Virginia home, the conservative jurist found a woman to blame: his wife. It was she who decided to wave the chosen banner of election deniers in the wake of the January 6 insurrection, he said, after she became righteously furious at an allegedly profane display of anti-Trump sentiment in her neighborhood. Alito, innocent, just happened to live there — with no input on the seditious décor.
Everything about this is normal, okay?
It took just over a week for The New York Times to find out there was another flag, at another home, also associated with the fringes of the American right. This one, known as the “Appeal to Heaven” flag for the words printed on it, above a depiction of a pine tree, was displayed outside Alito’s beach house in New Jersey during the summer of 2023.
This time Alito did not blame his wife; per the Times, he had nothing to say at all.
The same banner flies outside the home of House Speaker Mike Johnson, R-La., an open believer in using the government to impose his form of right-wing Christianity. As Rolling Stone reported, the “Appeal to Heaven” flag has its roots in the Revolutionary War, but in recent years “it has come to symbolize a die-hard vision of hegemonically Christian America” — that is, a society where laws are written based on narrow-minded interpretations of the Bible under the belief that one religion, and one particular, Americanized interpretation of that religion, should enjoy government-sanctioned supremacy over all others.
It also means a country where Donald Trump rules without regard to certified election results: the flag of Christian nationalism was flown, literally, by the same extremists who stormed the U.S. Capitol in 2021.
“There is an apparent pattern of Justice Alito publicly displaying symbols featured in the January 6th attack on the Capitol and associated with Donald Trump’s false claim of having won the 2020 election,” Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, said in a statement. “Flying a flag carried at the insurrection in the days immediately following the insurrection is tremendously alarming. Doing so again, years later and on multiple occasions, as even more high stakes insurrection-related cases came before the Court, simply cannot be explained away.”
Alito, former President George W. Bush’s backup choice for the Supreme Court, has not fooled anyone before: that he is a right-wing ideologue, eager to overturn precedent on abortion and the separation of church and state, has been ably demonstrated since his confirmation in 2006. That he has ethical issues has also been reported before.
Last year, ProPublica revealed that the justice went on an undisclosed trip to a “luxury fishing lodge," flying on the private jet of hedge fund manager Paul Singer (Alito tried to preemptively rebut the story with a highly unusual commentary in the Wall Street Journal, claiming ignorance of the fact Singer had business before his court).
The right-wing defense of Alito today is based on a mix of studied ignorance and attacks on Democrats for being mean about the Supreme Court’s conservative majority. Kim Strassel, a columnist at the Wall Street Journal, spun the upside-down flag as having less to do with January 6 than with hurt feelings — with “this broader attack on the court and the hatred that’s been directed at the justices.” In this telling, it’s fine to signal one’s support for insurrection as a form of venting, even if you (or your spouse) are supposed to avoid any hint of partisan bias.
The other line, when no spouse or mean neighbors can be blamed, is to profess an ignorance of symbolism – to pretend there’s no modern context for the “Appeal to Heaven” flag, in particular, that might suggest a political leaning. Who knows? The right-wing justice could be waving a flag adopted by the far right because he’s an historical aficionado, one unbothered by message sent by waving it a couple centuries later.
But that would just be partisan spin from a political faction that has given up caring about appearances.
“[T]his is a huge deal,” argued Andrew L. Seidel, an attorney and author of a book dismantling the myth of an avowedly Christian founding of the U.S. government. “The Appeal to Heaven flag was all over the insurrection and comes out of explicitly Christian nationalist spaces,” he wrote on social media. “Sam Alito is professing his Christian nationalism.”
According to the American Bar Association’s Model Code of Judicial Conduct, a judge should not just avoid impropriety but the “appearance” of it; they should conduct their personal life in such a way as to “minimize the risk of conflict with the obligations of judicial office”; and they should avoid all “political or campaign activity” inconsistent with their official responsibilities.
Alito, in other words, is entitled to privately support Trump, the January 6 insurrection and Christian nationalism, but he is not a normal private citizen. Although not bound by the ABA’s code, the principles upon which it is based should be uncontroversial: Alito holds public office and thus must uphold a higher standard of personal conduct, avoiding speech that would fatally undermine his claim of impartiality.
“[W]hen you’re a Supreme Court justice, you’re supposed to avoid giving off even a whiff of partisan bias,” former U.S. attorney Joyce Vance noted on her website. “Or religious favoritism. As a judge, and certainly, as a Supreme Court justice, you have that duty. Justice Alito flunks the test and flunks it badly.”
If nothing else, Alito has provided liberal critics grist and damaged the credibility of the decisions his right-wing supporters would like him to write going forward (the Supreme Court is expected to rule shortly on whether Trump and other former presidents enjoy immunity from prosecution). But now even institutionalists, who have been hesitant to damage what they see as the legitimacy of the Supreme Court, are arguing something must now be done.
“For the good of our country and the court, Justice Alito must recuse himself immediately from cases related to the 2020 election and the January 6th insurrection,” Sen. Dick Durbin, D-Ill., chair of the Senate Judiciary Committee, said in a statement. Durbin also called on Chief Justice John Roberts to “immediately enact an enforceable code of conduct,” arguing that Alito’s flag waving “will further erode public faith” in the country’s highest court.
Richard Hasen, a legal expert who heads the Safeguarding Democracy Project at UCLA Law, said Alito’s second display of support for insurrection was the final straw for him.
“I was uncertain if the initial revelation of the first flag merited Justice Alito’s recusal in the first case, but I now believe he must recuse in the Trump immunity and related cases,” he wrote on his website. “There’s no blaming it on his spouse this time in any credible way.”
Unfortunately, there’s not much that can be done should Alito again reject personal responsibility and should Chief Justice Roberts again refuse to enforce a code of ethics. Impeachment short of a Democratic super-majority is also a pipe dream, not a plan of action. In the spring of 2024, all Alito’s critics can really do is pray that the winner of the next presidential election, who may well pick his successor, isn’t the same man who tried to overturn the last one.
