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In January 2021, the upside down American flag had become a banner for Donald Trump’s effort to block the peaceful transfer of power. Armed insurrectionists carried it into the U.S. Capitol on January 6. Eleven days later, even as National Guard troops still guarded the Capitol and the Supreme Court building itself, Justice Samuel Alito flew the insurrectionists’ flag outside his Virginia home.
This was far more than an act of indiscreet partisanship, troubling though that might have been. We’ve had those before, from Sandra Day O’Connor backing George W. Bush to Ruth Bader Ginsburg mocking Trump. Justices are human and sometimes they slip up.
No, this was not a gaffe. It was a senior government official hoisting the banner of a violent insurrectionist movement devoted to overturning a core constitutional principle. At the time, there were numerous cases before the Court in which the justices swatted away Trump’s false claims of a stolen election.
And now this term alone, three major cases have been argued that go straight to the misconduct that marked the “Stop the Steal” effort. Already Alito joined the majority in rejecting Colorado’s effort to keep Trump off the ballot because he had engaged in an insurrection. The Court is considering a challenge to the use of federal criminal law that could toss the convictions of 350 insurrectionists who stormed the Capitol.
And of course, Alito is part of the Supreme Court’s most egregious intervention on Trump’s behalf — its refusal to allow the timely federal prosecution of the former president. Special Counsel Jack Smith asked for a ruling confirming that Trump is not immune from prosecution in December 2023. Instead, Alito and his colleagues scheduled arguments for the last hour of the term and seemed to make up a doctrine of wide immunity for some criminal misconduct on the spot. Stop the steal? Start the stall.
Alito has long been inscrutably angry, unwaveringly dogmatic, and the most predictably partisan of all justices. But his growing brazenness still shocks. Judges are required to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” There is simply no question that Alito has breached the rules. Of course he should recuse himself from consideration of the Trump immunity case and the other cases dealing with January 6. Of course he won’t.
So in the face of this kind of brazenness, what to do?
To start, Congress must finally pass a binding code of conduct for the justices. The current code, which the Court announced in November, is vague and toothless. It was always a bid to forestall congressional action.
Last year, Alito told the Wall Street Journal, “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.” That’s silly. As my colleagues Jennifer Ahearn and Michael Milov-Cordoba recently documented in a well-timed law review article, Congress has a major role to play in enforcing Supreme Court ethics. Congress can, and repeatedly has, expanded and shrunk the size of the Court. It can change the Court’s jurisdiction. It has set rules for recusal and financial disclosure. Congress even wrote the justices’ first mandatory oath of office way back in 1789. As Justice Elena Kagan wisely responded last year, “It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial.”
Congress can also demand that Alito answer questions under oath, rather than hiding behind incomplete press releases (and his wife). Maybe it can do more.
A breach of this magnitude — in a case that implicates the health of our democratic institutions, by a justice that hasn’t shown a single shred of contrition — is a fit topic for robust political intervention.
And, as we’ve said before, it’s time for term limits. In response to the latest scandal, Alito has shrugged. That is a powerful demonstration of the dangerously emboldening effects of lifetime power. Nobody should hold too much power for too long.
And where is Chief Justice John Roberts? He often purports to be an institutionalist and tries to curate the credibility of the Court. He knows that public approval for the high court has plunged to nearly its lowest level ever recorded in polls. That goes beyond a reaction to Dobbs and other activist rulings — it reflects wide public dismay with what has become a partisan institution.
Ultimately, this kind of power grab should be a part of the national debate in our national election. Where is President Biden? He seems reluctant to engage, clinging to an outdated reverence many liberals still have for the Court as an institution. But as conservatives taught us for decades, it is entirely appropriate for the Supreme Court, its actions, and its impact, to be a major part of public debate.
The U.S. Flag Code instructs that the upside down flag should not be flown “except as a signal of dire distress in instance of extreme danger to life or property.” Today it is our constitutional system that is in extreme danger — but not in the way Alito and his allies believe. If Alito won’t voluntarily do the bare minimum to protect our democracy, the coequal branches should do everything they can to force him to do so.
