What These Stories About Samuel Alito’s Absurd “Provocative” Flags Are Really About

It’s easy to be furious at Samuel Alito, who has recently racked up yet another petty personal grievance display over, of all things, flags. Last week saw the earthquake report that his wife flew a flag upside down—signaling either that the country is in danger or that the election was stolen—in the days after the Jan. 6 attack on the Capitol. This week, the New York Times further reports that Alito was flying an “Appeal to Heaven” flag at his New Jersey beach house this past summer. That flag is not merely another Jan. 6 signifier but is also rooted in John Locke’s “appeal to heaven,” meaning “a responsibility to rebel, even use violence, to overthrow unjust rule.”

In some ways, this is another very ridiculous, very 2024 story about the lengths to which ostensible adults will go toward owning the libs, and one justice’s fantastically bad judgment and cluelessness about the appearance of impropriety. But this is not even about Samuel Alito. Neither, actually, was the bombshell report about his alleged leak of the outcome of the Hobby Lobby decision in 2014 to wealthy religious Supreme Court lobbyists about Samuel Alito. To expend energy railing against this one petty, petty little man is to inveigh against the symptom as opposed to the problem.

It is just as easy to be enraged at Clarence Thomas and his myriad and corrosive ethics violations. His wife has texted with Mark Meadows over what she believed to be a stolen 2020 election, tried to encourage state legislators to support a slate of dummy electors, attended part of the “Stop the Steal” rally on Jan. 6, and testified before the Jan. 6 committee that she still believed that that election had been stolen. And Thomas has declined to recuse himself from the three Jan. 6 cases heard at the high court this year. But again, this is not about Ginni or Clarence Thomas. Expending energy hopelessly trying to shame Clarence Thomas or Samuel Alito is an act of incalculable futility.

It is not even, I fear, about Chief Justice John Roberts, who might have, in a different time and under different circumstances, been the type of history-minded leader who would have dealt with this shameless and flagrant squandering of the court’s reputation as a serious body. After all, Roberts once told Jeffrey Rosen in the Atlantic, “The Court is also ripe for a similar refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy as an institution.” But that chief justice left the chat at least a decade ago. In failing to act, over and over, he has been a powerful actor.

In Legitimacy Roberts’ stead we have been left with yet another defensive, thin-skinned thunderer about judicial independence and a longtime coddler of insurrectionists and grifters. Which is why calling on Roberts to take a page from Chief Justice Earl Warren’s playbook and use his moral authority to do something about Alito and Thomas—as Warren once did about Abe Fortas—is almost as futile as calling for him to put real teeth into an ethics code or conduct a meaningful investigation of the Dobbs leak. Roberts, respectfully, has long ago made the decision that he is simply one coequal vote among nine. He neither wants nor possesses the authority to rein in the MAGA justices. He may vote as though he cares about court legitimacy, but he chief justices like the harassed mother of a kid throwing a tantrum at Safeway—all shrugs and eye rolls. We can and should demand that Roberts account for what he knew and when he knew it, but Roberts will not solve the problem he has allowed to fester and grow.

So if the real problem here is not Sam Alito, or Clarence Thomas, or John Roberts, why have we wasted years of ink and umbrage and energy trying to change their behavior? Alito and Thomas will not be recusing themselves from either Fisher or the Trump immunity case. The chief justice will not be urging them to do so. No lawyer arguing in front of the court will, as Sherrilyn Ifill has been urging, demand a recusal or an investigation of justices with blatant conflicts of interest hearing these Jan. 6 cases because, as Noah Bookbinder of CREW recently told us on the Amicus podcast, to ask the very people you want to cast votes for you to find themselves conflicted is rank insanity. “The system of leaving it up to litigants to challenge justices as potentially conflicted doesn’t make any sense,” Bookbinder said. “Of course that’s not going to work. And leaving justices to make that determination doesn’t make any sense. You need to have some kind of outside body who can evaluate those kinds of questions.”

Who, who, who might that outside body be? Tapping my chin—you tap yours.

Bookbinder’s answer points beautifully to the real problem: We have a judicial enterprise that rules over us with absolutely no one ruling over it. Nobody should be all that surprised that Sen. Dick Durbin has announced that the Senate Judiciary Committee will not launch a probe into Alito’s recent conduct. The Senate has also been trying to unearth the financing for Thomas’ quarter-million-dollar, salt-of-the-earth RV, amid other ethics violations, and Leonard Leo has declined to comply with subpoenas related to it. Yes, the Senate should be acting to resolve this problem, but that seems to have largely stalled at “Ask them to recuse.”

So, just to review, this isn’t really a Sam Alito problem, or a Clarence Thomas problem, or a John Roberts problem—but it also isn’t even a Senate-Dems-who-can’t-muster-the-energy-to-close-the-deal problem.

No, I have come to conclude 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. Not just Alito or Thomas, who happen to go to work every day at the court, and not just Dobbs and gun control, which happen to have come out of the very same court, but the connection between those two tales: 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. More so, 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. Until we do that, Alito will continue to fly around the world, giving speeches about his triumph in Dobbs and Thomas will keep taking gifts and failing to disclose them. That won’t be the end of the Supreme Court story; it will be just the start of it.

My friend Jennifer Rubin unspooled a call for Democrats to run in November on the promise of abortion rights and court and filibuster reform. That too will be a start. But Donald Trump is already training us to accept the argument that presidents need to be able to order the assassination of their rivals, and Alito is training us to tolerate the notion that if we don’t grant presidents immunity for such acts, they won’t agree to peacefully leave office. In the span of a week, Alito has also trained us to accept that justices can fly whatever inciting and ideological symbols they like, even if the guys who work in the SCOTUS mailroom can’t, because justices are also the recipients of blanket immunity. The problem with these arguments about offering immunity to bad actors is that you can metabolize the helplessness almost as rapidly as you metabolize the idea of immunity itself. It’s not merely the idea that law is for suckers that we have normalized in this precarious moment—it’s the tragic collective conclusion that there is nothing to be done about the fact that the light is really flashing red right now.

An imperial court is the problem, not Martha-Ann Alito’s childish tantrums and not whatever her husband will tell Fox News tomorrow about how the haters made him fly a Christian nationalist flag as the court took on the mifepristone case. Please don’t let the rapid riptides of the news cycle or the sense that God wants us all to live under the fist of an imperial court forever and ever, amen, distract from the fact that term limits, court expansion, an inspector general, and filibuster reform, all of this is possible, and none of it is happening in the wake of the Alito flag revelations, just as none of it was happening when Ginni Thomas showed up at an insurrection rally. The court is hearing cases on the docket while some justices are living life off the docket that prove one thing only: that institutional immunity is not so much taken as silently and invisibly conferred. If we have learned anything at all in the recent past, it’s that it’s also contagious.