Red Flag Warning

Justice Alito comes under further scrutiny and criticism over a second symbol of January 6 raised above yet another one of his homes.

Photo of the “appeal to heaven” flag raised above the Alitos’ home in New Jersey in 2023. Photo courtesy of the NYT.

Lordy, there’s a second flag. And it’s worse than the first.

To kick things off, a quick refresher. Last time on Justices Gone Rogue, Alito was confronted with reports of a U.S. flag flying upside down at his home, just 11 days after the January 6th attack. The report drew howls of protest because Alito appeared to have signaled sympathy for the insurrectionists at the Capitol, who had also carried the upside down U.S. flag as a symbol of their seditious rebellion. 

In a written statement to the New York Times, Alito promptly blamed his wife for the display, claiming it arose out of a heated political dispute with a neighbor. Just a momentary lapse in judgment, no big deal.

But Alito has fallen silent in the face of the newest revelation. According to a bombshell report from the Times, at his beachside home in New Jersey last year, Alito flew the “appeal to heaven” flag, an expressly Christian nationalist symbol supporting violent uprising against unjust rule. It, too, was a flag popular among the insurrectionists on January 6.

I somehow doubt Alito’s wife had an argument with yet another neighbor and put that particular flag up in protest. And honestly, just how many insurrectionist flags must be flown at the Alitos’ homes before we conclude the obvious? Justice Alito is an insurrectionist sympathizer, and he actually wants the world to know it.

Let’s be clear about what this means. Alito is giving our entire democracy the finger. He has expressed public allyship with the enemies of our Constitution instead of upholding his oath of office. And he’s also a coward and a liar, unwilling to speak his traitorous words aloud, yet ready to throw his wife under the bus the moment he’s questioned about these displays.

In today’s piece, I’ll discuss what the “appeal to heaven” flag means symbolically and why it can’t be explained away as something raised high in a moment of pique. I’ll delve into why Alito’s display flies in the face of his sworn oath and is grounds for his removal from office. Then I’ll dig into why our system is so frustratingly incapable of holding Supreme Court justices like Alito and Thomas to account, and what we must do in response.

Violent, Christian Nationalism

As Dahlia Lithwick of Slate notes in her excellent piece out yesterday, the flag at the second Alito home is “not merely another January 6 signifier” like the upside down U.S. flag at their home in Virginia, but is “also rooted in John Locke’s ‘appeal to heaven,’ meaning ‘a responsibility to rebel, even use violence, to overthrow unjust rule.’”

If that wasn’t bad enough, the Christian Nationalist right has co-opted the flag as a symbol of their own movement. As Prof. Robert Reich warned after condemning the display, “Christian nationalists believe that the law of the land is not the Constitution, but instead the law of God as they interpret it.”

The flag was present and visible to anyone participating in or observing the January 6 attack on the Capitol. These images are courtesy of Jamie Dupree, who writes the “Regular Order” newsletter about Capitol Hill, and confessed, “I wasn’t familiar with the ‘Appeal to Heaven’ flag that evidently flew at the Alito beach house—but they aren’t hard to find at the Capitol on Jan. 6.”

Alito’s oath of office

As noted by Mark Jacob, former editor of the Chicago Tribune and Sun Times, when Supreme Court justices swear their oaths, they pledge to “impartially discharge and perform all the duties incumbent upon [them] as a Supreme Court Justice under the Constitution and the Laws of the United States.”

Two things to note here. 

First is the word “impartial.” SCOTUS Justices swear to be impartial, meaning fair and without bias. They aren’t supposed to act as partisan hacks, let alone signal their public support for people who tried to violently overthrow our government. After not one but two such coup-adjacent flag displays, Justice Alito cannot be deemed to be impartial when deciding cases involving insurrectionists.

As columnist Molly Jong-Fast quipped, “Imagine if RBG had an antifa flag hanging outside of her beach house.” Or for that matter, imagine if Justice Ketanji Brown Jackson hung a Black Lives Matter sign. It’s hard to picture, given their personal ethical standards, but the right would never let it go, and we shouldn’t in this case either.

Apologists for Alito point out that Speaker Mike Johnson also has the “access to heaven” flag outside his office, which should worry us for different reasons. But Speaker Johnson is not a judge, and he is held to a different oath. As Sen. Richard Blumenthal observed in an interview with Chris Hayes of MSNBC, in which he called for Alito’s recusal,

This political statement is part of a pattern. This political statement is, in effect, support for Donald Trump, for a religious strand of the ‘Stop the Steal’ movement, and for a theological vision of what America ought to be and how it ought to be governed. Which is okay for Speaker Johnson to fly outside his office. He’s a politician. But Supreme Court justices are supposed to be above reproach, and above politics.

Moreover, the question of Alito’s impartiality isn’t some abstract or academic one. He flew this flag while actively deciding cases about the insurrection. Indeed, the flag was aloft at the very moment SCOTUS was reviewing the Fischer case, which is about whether the obstruction of Congress statute, Title 18 USC Section 1512(c)(2), can legally be used against insurrectionists.

Writer Jay Willis of the Balls & Strikes newsletter aptly put it: “As any legal ethics expert will attest, if you are a sitting federal judge, nothing demonstrates your commitment to impartiality quite like using tacky seasonal home decor to signal your deepest sympathies for one of the parties before you.”

Speaking of balls and strikes, it is one thing to be a shameless partisan hack and to count votes on the Court instead of calling the law as you impartially see it. It is entirely another level to make public your extremist political views and call the Court’s entire legitimacy into question. Alito would be stricken for cause from any January 6 jury due to his bias. Why does he get to sit in judgment of the insurrectionists or Trump?

Indeed, if you are a MAGA extremist and Christofascist plant acting deliberately to help keep insurrectionists from accountability, then you yourself are actually aiding and abetting their crime. That’s why it’s not enough to demand recusal by Alito. His ties to the Christian right and the insurrectionist movement ought to be investigated, and he should resign or be removed from office should it become clear that his finger was deliberately on the scale for the defendants. 

Second point to note: the shuddery, Christian Nationalist thing. Justice Alito’s oath is to the U.S. Constitution and the laws of the United States. That oath doesn’t mention the Bible, either the New or Old Testament, anywhere.

The problem with any judge, let alone a Justice of the Supreme Court, flying a Christian Nationalist flag is simple. It indicates to the public that the Justice believes the word of God is supreme to the text of our Constitution and our laws—which is manifestly not the way our system works. Separation of church and state is still a thing, but Alito has now publicly indicated he doesn’t believe it to be one. That’s a huge problem, and no one who holds such beliefs, and flouts them openly like Alito has, deserves to sit on the nation’s highest court.

If we collectively shrug and let this go, we are leaving open the door, and widely, for future insurrection and even religion-steeped overthrow. As Alex Aronson, former staffer to Sen. Sheldon Whitehouse (D-RI), sagely observed, “These two Alito flags together are the story of the end of our country. One a totem against democracy itself, the other a vision for our theocratic future. The symbolism is haunting.”

The inadequacies of accountability

If there is any theme with which we have grown sadly familiar this past year, it is this: Holding the worst offenders and biggest bird flippers to account is a messy, time-consuming and often unproductive business. This is especially true when they are flanked and protected by bad faith enablers. We would not be in the quandary we find ourselves in today, for example, had Mitch McConnell not stacked the Supreme Court with partisans and given a procedural pass to Trump at his second impeachment trial in the Senate.

The warnings from congressional leaders are growing notably louder and are venturing into the realm of actual legal consequences. Said Sen. Whitehouse in an interview with Lawrence O’Donnell,

One interesting feature of the recusal requirement is that it is a law, passed by Congress, specifically applicable to Supreme Court Justices. When they pay no attention to it, they are actually violating statutory law. This is not one of these rules that the Supreme Court or the judicial branch come up with for themselves, where they might say, “Well this is just judicial stuff, you legislators, you just run along here.”No. This is the law of the land passed by Congress, and they’re just flouting it.

Yes, and? The truth is, the Senate Judiciary Committee, led by a feckless Sen. Dick Durbin (D-IL), has yet to announce any hearings or even to request, let alone compel, Alito to appear before it. And it is currently stymied at even forcing billionaire backer Leonard Leo to come explain the vast and deep involvement of dark money in our judicial selection process and the corruption of Justices Thomas and Alito. Perhaps Sen. Durbin knows he lacks the votes to do this. Or perhaps he is simply willing to politely decorum us into a Christofascist spiral.

Justice Alito certainly won’t heed any of the calls from congressional leaders for his recusal from all January 6 cases. His sense of invincibility and imperviousness has made him drunk on his own superpower. Indeed, Alito likely relishes the notion that no one has the ability to punish him. 

But that isn’t true. We the voters have that power, and we must not concede it. We can elect a House majority that will impeach him, at the very least, and a Congress that can pass Court reform if we make it an important enough issue. 

The November election is about more than keeping Trump from regaining office. It is about keeping our very Republic. Again, from the eloquent Dahlia Lithwick, 

[What] I have come to conclude is that this is an us problem. Because rather than hurling ourselves headlong into the “Alito Must Recuse” brick wall of “yeah, no,” we need to dedicate the upcoming election cycle, and the attendant election news cycle to a discussion of the courts. 

Lithwick asks us to grapple with

what it means to have a Supreme Court that is functionally immune from political pressure, from internal norms of behavior, from judicial ethics and disclosure constraints, and from congressional oversight and why that is deeply dangerous. Moreso, why justices who were placed on the court to behave as well-compensated partisan politicians would do so in public as well as on paper. 

In other words, like Donald Trump, Justices Alito and Thomas are outgrowths of a dysfunctional system that rewards bad behavior instead of punishing it. And, again like Trump, the more we are unable to hold them to account, the worse they will act.

But expecting the system, as it stands, unchanged and ossified—the very same system that permitted and rewarded their rise—to now operate as an absolute check upon such men is grave folly. The system must change, and only we the voters have the real ability to compel it to.

If this seems daunting or even impossible, we can look to places where real systemic change has taken root because the voters settled for no less. For example, in two critical swing states, Michigan and Wisconsin, the people demanded an end to undemocratic, gerrymandered rule and turned up in huge numbers to put an end to it. The result is a trifecta of Democratic government in Michigan and a Wisconsin State Supreme Court majority that has redrawn fair district lines, after over a decade of anti-democratic, extremist minority GOP rule.

It is time to put the Court near the top of our list of reasons to turn out this November. Accountability, ethics and an end to partisan, religious-based decision making would strengthen our democracy considerably by restoring the traditional backstop that the Court provides when demagoguery and fascism threaten our Republic, as they most certainly do now. 

Our judicial system held against the onslaught of lies and corruption in 2020. But it teeters and cracks today, and we must shore it up. To do this, we must first take back the House, hold the Senate, and keep the White House. Court reform, and an investigation into court malfeasance and treachery, should be a major election issue and a top legislative priority for Democrats, if and when the party again holds power.

Above all, Trump and the GOP must not have the power to appoint justices after 2025. Both Alito and Thomas could resign and be replaced by younger, even more frightening versions of themselves, locking in a radical Court with a radical agenda for another generation. Young voters in particular must be warned of the danger and encouraged to turn out in force as they have the last three election cycles.

Our coalition is strong enough to win and strong enough to force real change. But first we must be clear-eyed and purposeful about what that change is. 

Justice Alito has raised his flags. Now we must raise ours.