Why Justice Samuel Alito’s flag argument is upside down

As a first-time candidate for local office, my party chairman said there was no more important aspect of the campaign than lawn signs.

In addition to showing crucial neighborly support and effective organizing, I have learned over the years of campaigning that what people show on their property, at home, is a public commitment that cannot be taken lightly and only if all members of the household agree to it. If my wife and I disagreed on the candidates, we would put up signs for both or neither. We would have to agree to allow either of us to post signs about referendum issues.

That’s why I was intrigued by the “upside-down” American flag that flew on the suburban estate of Supreme Court Justice Samuel Alito and his wife, Martha, on the outskirts of Washington, D.C., after the “insurrection” at the nearby Capitol on January 6, 2021. Alito tried to downplay its importance by refusing to recuse himself (not to take part in the consideration of) cases involving the election and the insurrection.

Alito included his views in a letter to members of Congress. Alito claims that (i) his wife likes to fly the flag and he does not, (ii) she has a First Amendment right to fly the flag, (iii) the house is jointly owned, and (iv) he asked her to take down the flag “to upside down” and she refused for some time.

These excuses may be true – and completely understandable – as to why Alito did not forcibly remove the flag. And his focus on process and his wife’s “rights” is commendable, although my inner libertarian wishes he had been more supportive of process and rights in his constitutional decisions in court.

Alito’s arguments, however, are irrelevant to the issue of denial.

The key to denial is the conclusion of a reasonable person. Judicial ethics have always focused not only on actual irregularities, but also on any “appearance of impropriety.” Our judicial system needs this protection, especially now when public acceptance of the courts, and especially the Supreme Court, is at an historic low. After all, the court does not have an army to enforce its rulings, and its important rulings have historically been successful, including those protecting against discrimination and due process violations, only when there was public and political support.

Questionnaire

Some may argue that we will need such support for the Supreme Court if the “inverted” flag is replaced by an attempted insurrection like the one it supported.

In his brief, Justice Alito quotes the Supreme Court Code of Conduct: “A judge should disqualify himself in a proceeding in which his impartiality could reasonably be questioned, that is, where an impartial and reasonable person, aware of all the relevant circumstances, doubts whether the judge will able to reliably discharge his duties” (emphasis added). The explanatory clause (beginning with “that is”) goes some way to weakening the more stringent requirement, which is also literally the standard contained in the current federal statute (requiring disqualification “in any proceeding in which his impartiality could reasonably be questioned”).

But whether the standard is what a reasonable person “might question” (federal statute and the Supreme Court Code standard) or “doubt” (the fuzzy explanations in the Supreme Court Code), Justice Alito should recuse himself or, if so, necessary, be forced to withdraw — from all cases coming before the Supreme Court that raise issues related to the 2020 election and the 2021 insurrection — because a reasonable person believes that what flies in front of the house is a statement for household; because a reasonable person believes that a lawn sign does not stand or a flag does not fly unless both spouses agree with the opinion expressed, whether or not they agree as to whether and how it is publicly manifested.

A reasonable person would certainly at least “might question” and probably “doubt” Justice Alito’s impartiality, given the strong views expressed by his household on the election and the insurrection by flying the “inverted” flag. Not to mention recent statements to an undercover documentary filmmaker confirming that Alito believes the nation should return to a “place of piety,” and his wife’s desire to fly the “Sacred Heart” flag to counter the “pride” flag gay” in the neighborhood.

I am also concerned about two “legal defenses” offered by Justice Alito. Alito has argued that his wife has a First Amendment right to free speech, but as a Supreme Court justice, he knows – and should educate others accordingly – that the First Amendment applies only to government actions and does not protect his wife from his actions to take down flag. And while Martha Alito may be a “co-owner,” that generally means neither has the right to act without the other, although I doubt either spouse has filed a lawsuit over the decision to fly the flag.

If Alito, as a husband, suggests any broader rights for his wife (perhaps to privacy), it directly attacks… Justice Alito. By eliminating women’s constitutional right to abortion, Alito suggested that rights not expressly written in the Constitution would be limited to those “fundamental to our plan of orderly liberty” and “deeply rooted in our history and traditions.”

More recently, in an unrelated trademark case, a majority of the court, including Justice Alito, for the first time based its analysis of First Amendment limits on free speech “history and tradition” on internal disputes, perhaps not coincidentally, among all four of the Court’s justices . Not only did women historically lack many rights, but in the early 19th century – a particularly religious period that provided an inappropriate basis for Alito’s strict restrictions on abortion – husbands had full ownership and control of community property (including property previously owned by his wife). . marriage). History therefore shows that Justice Alito is unlikely to support his wife’s right to show anything, even if there were a statute (which triggered the First Amendment) – unless such a position acknowledges his personal predicament.