Justice Alito’s Old Glory

Calls for the justice to recuse himself in cases involving President Trump are part of the left’s attack on the court’s legitimacy to achieve liberal outcomes despite a conservative majority.

Tasos Katopodis/Getty Images
Protesters on June 27, 2022 outside Justice Samuel Alito's home at Alexandria, Virginia. Tasos Katopodis/Getty Images

Count on a renewed round of outrage — and calls for recusal — from the left over the report that an upside-down American flag was hoisted on Justice Samuel Alito’s lawn in January 2021. The upended Old Glory is a “startling symbol,” the New York Times says, of President Trump’s claims of election fraud. Yet it’s far from clear that Justice Alito had any intention of making the kind of political statement that would raise doubts about his impartiality.

“I had no involvement whatsoever in the flying of the flag,” Justice Alito tells the Times, noting that the pennant “was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” That explanation didn’t suffice to still the baying of Democrats and “judicial experts,” as the Times calls them, for Justice Alito to recuse himself from any cases involving Mr. Trump and January 6.

“A judge is supposed to act in a way that enables all parties and lawyers appearing before the Court to believe they will be treated fairly,” Senator Kaine scolded. Justice Alito, Mr. Kaine added, has “brazenly destroyed this bedrock principle.” Other top Senate Democrats, including the “beyond disturbed” Richard Blumenthal of Connecticut and the judiciary committee chairman, Richard Durbin of Illinois, also called for Justice Alito to step aside.

An erstwhile federal prosecutor, Joyce Vance, accused the justice of having “forgotten,” or “just flagrantly ignoring,” the principle that “judges are not meant to be above the law.” Yet this chorus of denunciation from Democrats — on the heels of a similar round of grousing over Justice Thomas’s alleged failure to report gifts from friends — doesn’t impair either justice’s responsibility to hear cases. Chief Justice Rehnquist called this the “duty to sit.” 

The obligation, to be sure, is not absolute, applying only in cases where a judge is “not disqualified,” the chief justice explained. This judicial duty, he said, “is even stronger in the case of a Justice of the Supreme Court.” There are, after all, no substitutes available for any of the Nine, and “no higher court of appeal” in case of an even split. A recusal, he warned, could leave a legal principle “unsettled” if such a split leads to “an affirmance of the judgment below.”

This was not to say that a justice should fail to “disqualify oneself where in fact one deems himself disqualified,” he explained. Yet it was “a reason for not ‘bending over backwards’ in order to deem one’s self disqualified.” As Justice Antonin Scalia later observed: “Even one unnecessary recusal impairs the functioning of the Court.” This is the context in which to view the left’s demands for recusal by conservative justices.

Has Justice Alito done anything to disqualify himself from weighing Mr. Trump’s cases over January 6, including larger questions of presidential immunity? “A Justice should not engage,” the court’s conduct code says, in “political activity.” If the flag in question was set up by Mrs. Alito, though, it’s hard to find fault with the justice. Nor was it a “Trump 2020” sign on the lawn. Nor, apparently, was the upside-down flag on display for long.

More broadly, the left’s attack on the court’s legitimacy — and the integrity of the individual justices — is part of an effort to achieve liberal outcomes at the court despite its solid conservative majority. It manifests itself in threats like Senator Schumer’s warning that Justice Brett Kavanaugh “will pay the price” for ruling against liberal abortion policies. It also comes in the form of “protests,” with an undertone of menace, outside the justices’s homes. 

No wonder Justice Alito is warning the justices have become “targets of assassination.” Nicholas Roske is being prosecuted for allegedly planning to kill Justice Kavanaugh. A Florida man, Neal Brij Sidhwaney, was just sentenced to prison for threatening to kill Chief Justice Roberts. The rhetoric over Justice Alito’s flagpole underscores why the Court is pleading with Congress for more security aid, noting “risks that require continuous protection.”


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