The ethics scandal that has been slowly germinating in the US supreme court for more than a year has erupted into a full-blown crisis, with the saga surrounding Samuel Alito and the politically charged flags flown at his homes posing a direct threat to the reputation and impartiality of the country’s most powerful bench.
On Wednesday, Alito, one of six rightwingers who control the nine-strong supreme court, wrote to Congress to explain why he was refusing to recuse himself from Trump v US. The case addresses Donald Trump’s claim that as a former president he has absolute immunity from prosecution over his role in the Capitol insurrection on 6 January 2021.
Alito’s letter begins by citing the supreme court’s own code of conduct. The court was forced begrudgingly to adopt the code in November in response to a slew of ethical outrages that were already engulfing Alito and his fellow conservative hardliner Clarence Thomas over their beneficial ties to billionaires.
“A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned,” the code states.
The standard here is that of an “unbiased and reasonable person who is aware of all relevant circumstances”. In the case of the Alito flags, it is hard to see how such a reasonable person could be left without doubts concerning Alito’s conduct and allegiances, given the New York Times’ bombshell revelations.
They told of flags flown at two Alito residences. The first, displayed brazenly at the Alitos’ Virginia home, was a regular Stars and Stripes hoisted upside down.
At the same time as it was flapping above the Alitos’ lawn, similar upside-down American flags were being paraded by Trump-supporting insurrectionists. They were carried as symbols of his “stop the steal” conspiracy to subvert the 2020 election, as the rioters invaded the US Capitol.
The second flag, flown at the Alitos’ beach house in New Jersey last summer, is known as an “Appeal to Heaven” flag. It was a revolutionary war symbol that has since been co-opted by Christian nationalists and election deniers.
It too was carried aloft by Trump-supporting rioters at the Capitol on January 6. They were present at an insurrection that now forms the kernel of two major cases currently awaiting decisions from Alito and his eight fellow justices.
Both cases – Trump v US, and a case considering whether January 6 rioters can be prosecuted for obstruction – will determine the degree to which Trump can be held criminally liable for his role on January 6. As such, they could influence the outcome of November’s presidential election, and with it, determine the identity of the most powerful person on Earth.
With stakes as high as these, the case Alito makes against recusing himself in the January 6 cases sounds risibly thin. “As soon as I saw [the upside-down flag], I asked my wife to take it down, but for several days, she refused,” he wrote to Congress.
This is not the first time Alito has been mired in ethical mud. A year ago ProPublica revealed that he had enjoyed an undisclosed ride in the private jet of the hedge fund billionaire Paul Singer, who spirited him to Alaska for a luxury fishing vacation.
The exposé strongly echoed previous ProPublica accounts of the lavish trips taken by Thomas – also without disclosing them – courtesy of the Texan real estate billionaire Harlan Crow. What stood out about these reports was the breathtaking contrast between the exceptional power that these two men now wield and their apparent disdain for having to answer for it.
After three years of the new six-to-three hard-right supermajority achieved through Trump’s three picks, there can be no doubt about Alito and Thomas’s power. They have been tearing down their own court’s precedents with abandon – stare decisis be damned!
In 2022 they ripped up the constitutional right to an abortion in Roe v Wade, destroying 50 years of settled law. Last year they eviscerated affirmative action in university admissions, upending 40 years of legal precedent. This year they look set to ditch the Chevron doctrine, which underpins the entire functioning of the federal government, also after 40 years.
Yet the justices show no willingness to accept that, as their power grows, so must their accountability. The justices had to be dragged kicking and screaming before they adopted the new ethics code, and even then, it remains entirely self-policing.
This time though, it may not be so easy to ride out the storm. Previous disclosures about Thomas and Alito have been heavy on the quid, lighter on the pro quo. They exposed the sumptuous gifts bestowed by Crow and other billionaires on the justices, but were less revelatory about what justices may have given in return.
The sharpest previous conflict of interest that came to light involved Thomas and his wife, the hard-right activist Ginni Thomas. She actively engaged in communications with Trump’s inner team as they were conspiring to block Joe Biden’s victory in the 2020 election.
In January 2022 the supreme court rejected Trump’s request that it block the release of hundreds of White House documents to the congressional committee investigating January 6. Thomas refused to recuse himself from that case, even though it later emerged that among those same documents were emails to the White House from Ginni herself engaging with the “stop the steal” conspiracy.
When the court ruled, only one justice dissented from handing over the documents: Clarence Thomas.
Alito’s flag problem lands in the middle of all this with a thump, adding drastically to the highest court’s ethical misery. The appearance of a conflict over the flags is glaring, touching as it does directly upon two monumental cases that will be decided by the court within days.
In that context, the justice’s denial that there is the slightest problem with impartiality is far from adequate. And the lack of any independent arbiter to clean up the mess looks increasingly untenable.
The motto of the supreme court is engraved boldly above its entrance. “Equal Justice Under Law”, it says.
Such a fine precept. If only it applied to its own.
