As if suspicions, partisan and otherwise, have not dealt enough blows to our criminal justice system in recent years, along comes Supreme Court Justice Samuel Alito’s flag flap.
Senate Judiciary Committee Chairman Dick Durbin, an Illinois Democrat, who has continuously called for tighter ethics legislation regarding the high court, decried the controversy as adding “to the court’s ongoing ethical crisis.”
First there was the American flag photographed hanging upside down at the Alitos’ Virginia house in January 2020, days after the failed attempt to overturn the election.
Since my Boy Scout days, I have known the upside-down flag to be an international signal of distress. In the Jan. 6 uprising, those sympathetic to the bid to keep Donald Trump in office flew the flag upside down to show their support. For the rest of us, it became a symbol of how the nation was in distress based on Trump’s lie that the election had been stolen by President Joe Biden.
With the Supreme Court about to take on multiple cases involving Trump’s attempts to overturn the 2020 election, one wonders what Alito was trying to say in those chaotic days. His response when questioned was to blame his wife for flying this new version of a “revolutionary” flag and to say she had acted in a moment of anger when some neighbors put up anti-Trump signs that offended her.
The flag, he said, had been “briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
He also reportedly told Fox News’ Shannon Bream that the neighbor had blamed his wife for the Capitol riot, yet still did not comment on the intended meaning of the display.
We had just gotten past several days of Alito being lampooned for throwing his wife under the bus when The New York Times, which broke the earlier story, reported that Alito was flying an “Appeal to Heaven flag” at his New Jersey beach house this past summer. That Revolutionary War-era flag, with its prominent pine-tree symbol and the words “”Appeal to Heaven” on it, has been adopted by far-right Christian nationalists and the “Stop the Steal movement” and was seen being carried by some of the rioters in the Jan. 6 attack on the Capitol.
Questions still abound, but that’s hardly surprising to anyone who has followed the court accountability “crisis,” as Durbin calls it. Durbin sent his first letter to Chief Justice John Roberts on the matter of recusal in the Jan. 6 cases more than two years ago.
With this latest series of highly questionable actions by the most conservative member of the court, Durbin has called for the immediate passage in Congress of the Supreme Court Ethics, Recusal, and Transparency, or SCERT, Act, which Durbin’s Judiciary Committee advanced last July.
It would require Supreme Court justices to adopt a binding code of conduct and create a mechanism to investigate alleged violations of the code of conduct, among other provisions. It would also tighten up disclosure and transparency requirements when a justice has a connection to a party or business before the court, and require justices to explain their recusal decisions to the public — in the sort of English, one hopes, that the public understands.
But will this legislation pass? Even Durbin was not sounding as optimistic as I remember him in past years. Meanwhile, the public’s confidence in the high court has taken a beating in polls.
Small wonder. We, the public, have seen a series of high-profile ethical lapses, beginning with the unprecedented leak of Alito’s Dobbs opinion, which the court later approved and which overturned the constitutional right to abortion. An investigation failed to find the leaker.
Later, there was Alito’s callous view of Dobbs that rankled liberals, in particular, as he sounded like he was gloating about taking away a fundamental right to privacy and reproductive freedom.
Chief Justice Roberts follows his office’s long-standing tradition of trying to sound reasonable while resisting any intrusions on the court’s ability to govern themselves, even after episodes that look to outsiders like conflicts of interest — or worse.
For example, all nine justices signed a new ethics code last year in which each pledged to step aside from a case when “impartiality might be reasonably questioned” or when a justice or a spouse has a financial interest in the dispute. That pledge was made on the heels of ethics questions that involved Justice Clarence Thomas and some of his colleagues. But it is not independently enforced. Instead, it charges the court with policing itself.
All of these controversies are likely only to burn brighter as the cases involving Trump finally are in the hands of the Supreme Court. Durbin, Roberts and other institutionalists, who currently appear unable to rise to the moment this crisis point seems to require, haven’t seen anything yet.
