Alito, Ethics and the Scourge of Arrogance

*Published with the generous permission of Steven Beschloss. For more of his important work, visit his America, America newsletter.

By Steven Beschloss

His wife did it. The neighbor made her do it. It’s not his fault. This is the basic defense of Samuel A. Alito, Jr., a justice of the United States Supreme Court.

You’ve probably heard the basic details of this terrible tale. It goes like this: Several days ago, The New York Times published a photo and the story of an upside-down American flag flying outside Alito’s Alexandria, Va., home in the days after the January 6 insurrection. That inverted flag is historically a symbol of dire distress that was co-opted by the insurrectionist “Stop the Steal” crowd and other anti-government extremists.

That flag—that highly partisan message to Alito’s neighbors and the world—was photographed on Jan. 17, 2021, just days before Joe Biden’s inauguration; and it was already up for several days, according to one neighbor’s email at the time. It was raised in response to a nearby “anti-Trump sign with an expletive,” the Times reported.

“I had no involvement whatsoever in the flying of the flag,” Justice Alito said in a statement emailed to the Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Note Alito’s response. Not “this was wrong.” Not “I take full responsibility.” Not “I am sorry.” Rather: Put the blame on the Mrs. and defend, defend, defend. Also: Ignore the deeper underlying issue that, at a time when the opinion of the nation’s highest court is in steep decline, the country needs justices possessing unassailable ethics and character.

As if the first responsibility for a judge—a member of the Supreme Court, for crying out loud—is not to be a calm and careful voice. As if it’s OK for Alito and his family to respond to the world around them defensively, aggressively, politically, angrily. As if it’s perfectly acceptable for a Supreme Court justice to conduct his affairs on and off the court with extreme partisanship, thumbing his nose at democracy and the will of the people.

Don’t just listen to me. Note the Supreme Court’s guidelines for its own staff: “Employees may not engage in partisan political activity. Partisan political activity is political activity related to elections contested by political parties.” And: “Employees may not engage in nonpartisan political activity if the activity could reflect adversely on the dignity or impartiality of the Court or it interferes with official duties.”

Dignity and impartiality. Alito, a grievance-filled member of the nation’s highest court, has made clear how little he cares about modeling either of those principles.

This event has rightly triggered wide outrage. The duty of a SCOTUS judge—any judge, in fact—is to deliver fair and impartial justice. Are we really to believe he didn’t see the flag flying outside his own house for days? Really?
And beyond legitimate questions about his truthfulness: That same justice—who allied himself with insurrectionists willing to commit violence to subvert free and fair elections—is still weighing in on cases involving the January 6 attack, including most despicably a slow-moving ruling on presidential immunity.

This all makes a mockery of Chief Justice John Roberts’ assertions that he cares about the credibility of the court and securing the public’s trust. “I want to assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct,” Roberts said last year.

A decade ago, in what now seems practically ancient, Roberts worried about the rancor and partisan divisions within Washington and its impact on the Supreme Court. “I don’t want it to spill over and affect us,” he said in 2014. “That’s not the way we do business. We’re not Republicans or Democrats.”

So much for that outdated view of the court.

Count Dick Durbin, Senator from Illinois and chair of the Judiciary Committee, among Congressional Democrats who can see what’s happening and demand action. Durbin has stated that the inverted flag at Alito’s house “clearly creates the appearance of bias.” And he insists something must be done: “Justice Alito should recuse himself immediately from cases related to the 2020 election and the January 6th insurrection, including the question of the former president’s immunity in U.S. v. Donald Trump.”

I could not agree more. And yet, disdain and the ideological pursuit of power continues to thrive on this court.

In lieu of a proper ethics code for this court—that is, one with enforcement mechanisms—we have every reason to expect that neither Alito nor Justice Clarence Thomas (whose wife Ginni participated energetically in efforts to reject the 2020 election results) will recuse themselves. And rather than make public statements explaining their refusal, these arrogant men will simply ignore the public’s outrage and the ethical issues in question.

It’s a tragic irony that the very people responsible for upholding the bedrock democratic principle of equality believe they are entitled to float above public reprobation. It’s hard to overstate how much damage this does to the once-respected court’s credibility.

Last November—after months of public outrage over revelations that Thomas accepted lavish vacations and other gifts from billionaire Harlan Crow—the court announced that it had created an ethics code for its justices.

But consider that document’s first two “canons”: “A Justice of the Supreme Court of the United States should maintain and observe high standards of conduct in order to preserve the integrity and independence of the federal judiciary.” And, “A Justice should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Please explain to me how that inverted flag which flew for days at Alito’s home does not violate “high standards of conduct” or “promotes public confidence in the integrity and impartiality of the judiciary.” Please explain to me how Justice Alito can reasonably justify not recusing himself from cases related to the 2020 election and the Jan. 6 insurrection.

I don’t have any confidence that he will recuse himself, of course. Alito and Thomas have followed the Trump Republican playbook: Never apologize. Never admit wrong-doing. Never show any signs of shame.

This scourge of arrogance deepens the already-deep polarization in the body politic because its proponents provide no quarter for discussion, negotiation or accommodation. Worse, this attitude increases the prospects for violence because it fuels extremism and exacerbates anger and conflict. The last place this scourge should be on display is the nation’s highest court—and yet it is.

Add this to the list of necessary reasons for Donald Trump and MAGA Republicans to face an overwhelming defeat in November: The real possibility that the next president will be selecting the next justices of the Supreme Court.

We don’t need more anti-democratic disdain on the court—or anywhere in government. That prospect is enough to make me raise an inverted American flag as an expression of extreme distress. Almost enough, that is. The last thing we need is more people appropriating and abusing symbols of democracy and justice.