These people can’t help themselves. Last week, the New York Times revealed that during the days after the violent attack on the Capitol on 6 January 2021, when the US supreme court was still considering whether to take up cases challenging Joe Biden’s election victory, the home of the supreme court justice Samuel Alito, in suburban Virginia, flew a pro-coup flag. The Times printed photos of the American flag flying upside-down on a pole in Alito’s front yard; by January 2021, the upside-down flag had become a well-known symbol of the so-called “Stop the Steal” movement, champions of Donald Trump who supported his legal and violent attempts to overthrow the 2020 election.
At the time, pro-Trump social media groups were encouraging supporters to fly their flags this way; upside-down flags had been carried by some of the insurrectionists who stormed the Capitol, just a few days before the symbol appeared outside Alito’s house. In the election case that was then before the court, Alito voted to hear Republican challenges to the election results. But he didn’t get enough of his colleagues to vote his way. Not that time.
The flying of the pro-Trump, pro-coup flag is in clear violation of the ethics rules that apply to federal judges. After several high-profile controversies at the court – including investigations into gifts given to Alito and his fellow conservative justice Clarence Thomas by deep-pocketed Republican donors – a controversy arose over why, precisely, those ethics rules have never extended to the supreme court justices.
Under enormous political pressure, the court agreed to assign itself a version of those ethics rules last year, aiming, it said, to dispel any public concerns and recommit the court to maintaining an appearance of credible neutrality. (Such rules have long applied to court employees, who, the Times points out, are not permitted to so much as attend a protest or put a bumper sticker on their car.) The justices did not elect, however, to make the new ethics code in any way enforceable for themselves. They’re not rules that can be enforced; they’re guidelines that can be – and are – ignored.
The court is currently considering several cases stemming from the January 6 insurrection, and will rule on two questions that concern its aftermath in the coming weeks: first, whether insurrectionists can be charged with obstruction of an official proceeding; and second, whether Donald Trump can be held legally responsible for crimes he committed while in office. After this November’s general election, there are almost certainly going to be further legal challenges to the election results, just as there were in 2020. Alito will be on the court to hear Trump’s arguments in those cases, too.
The flag, then, is just the latest reminder of a disturbing reality: that as the Republican party further radicalizes against democracy, the supreme court – the body which is tasked with checking these unconstitutional impulses – has become their ally. The rule of law cannot be relied on to stem the tide of rising authoritarianism, because our legal institutions have been captured by the authoritarians.
Why would Alito make such a brazen display of his partisan loyalties and disregard for the legitimate results of an election at a moment when the court is under such intense scrutiny? When the Times asked him about the pro-insurrection flag, Alito blamed his wife: he said she put it up after getting in a fight with a neighbor who had an anti-Trump lawn sign. It’s not clear exactly how this story is supposed to exonerate him: it doesn’t explain why the Alitos used this pro-coup gesture, of all the possible options, as a way to retaliate against their progressive neighbors. And the story is still one in which the Alitos are affirmatively voicing their partisan loyalty in public, and showing themselves unable to tolerate even the proximate presence of Americans who do not share their own morbid, conspiratorial and punitive worldview.
But asking why Alito feels he can get away with it misses the point: he knows he can get away with it. The justice is perfectly aware that he does not need to pretend to neutrality, or hide his partisan loyalties, or behave, with anything like a convincing effort, like his work on the court is motivated by the law and not his own reactionary political preferences. Alito knows that he does not need to maintain any pretext of integrity, intellectual commitment or seriousness in his work. The supreme court has accumulated enough power to itself – and the justices have done a sufficiently good job of insulating themselves from any accountability or consequence – that he doesn’t even think he needs to lie any more. He’s comfortable being a partisan operative right out in the open.
And why shouldn’t he? He’s not even the worst offender. After all, Clarence Thomas has not recused himself from insurrection-related cases, either, even though his wife, Ginni, was a vocal supporter of the insurrection – texting Trump’s then White House chief of staff, Mark Meadows, over and over about the effort before, during and after the riot, and attended the “Save America” rally on January 6 herself. Like Alito, there is no way to force him to step aside.
The justices do not enforce rules of impartiality, integrity, honesty, disclosure or decorum on themselves. And there are few mechanisms – and absolutely no political will – for anyone else to impose these on them. The people have no check on the court; Congress is dysfunctional and can’t act. And so the justices are acting like spoiled children: petulant, self-indulgent, shameless, jeering and unsupervised. Men like Alito and Thomas have not done what decency requires – and there are no means to compel them to.
If this was an honorable court, a man like Alito would never have been appointed. If it was a functional court, he would resign. If it was a court composed of jurists capable of shame, he would recuse himself from election-related cases. But it is none of these things.
It is time to admit what this court has become: an elite, but no less sadistic and vulgar, bastion of the anti-pluralist, anti-democratic forces that have captured so much of the Republican party and the conservative base. To say that the court is composed of partisan operatives – and that at least two of them are either so delusional that they have lost touch with reality or so cynical that they don’t mind when the facts diverge from their preferred outcomes – is so obvious as to be almost banal to any honest court observer. That anyone pretends that the court is a legitimate judicial body is a farce. That its actions still carry the force of law is a tragedy.
Moira Donegan is a Guardian US columnist
