An Insurrectionist on the Supreme Court?

There may be an insurrectionist justice on the Supreme Court, perhaps two. The New York Times reported yesterday that 10 days after a violent mob ransacked the Capitol in an attempt to overturn the 2020 election and keep Donald Trump in power, an upside-down American flag flew outside the home of Justice Samuel Alito. At the time, Trump supporters were using the upside-down flag as a symbol of their belief in Trump’s lies that the election had been stolen.

Trump knew those claims were false, and many conservative-media stars also knew those claims were false. Nevertheless, right-wing outlets like Fox News repeated those false claims, stirring hope among their audiences that the election outcome could be reversed by force or fraud. The conservatives who trusted those outlets clung to those beliefs, either earnestly or as an ideological expression of their more foundational belief that the constituencies of the rival party are illegitimate and their votes should not count.

Among those audiences appears to be the Alito household, which, according to the Times’ report, flew the upside-down flag for an unknown number of days, despite or because of the fact that “Trump’s supporters, including some brandishing the same symbol, had rioted at the Capitol a little over a week before.” Alito, for his part, as right-wing champions of family values are wont to do, blamed his wife.

From the January/February 2024 issue: A MAGA judiciary

“I had no involvement whatsoever in the flying of the flag,” the right-wing justice told the paper. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” A Fox host later reported that “the neighbor put up a sign personally addressing Mrs. Alito and blaming her for the Jan 6th attacks.” Even accepting that this is true and that Alito’s neighbor was behaving rudely, signaling support for an insurrection is an odd way to respond to someone accusing you of supporting an insurrection.

Alito’s statement is notable because, as the Times reporter Michael Barbaro pointed out, it does not deny that the flag was flown in solidarity with the insurrectionists. It also does not disavow the insurrectionist claim that the 2020 election was stolen, and it does not condemn the Trump-directed attempt to overthrow the constitutional order that Alito has sworn an oath to uphold. Nor do the subsequent statements to Fox purporting to explain the flag’s presence. Alito is also not the only justice whose spouse seems to have supported Trump’s failed coup. The congressional investigation into the events of January 6 showed that Virginia Thomas, a conservative activist and the wife of Justice Clarence Thomas, tried to persuade Arizona Republicans to overturn the result in their state. Justice Thomas was later the only dissenting justice in a ruling that allowed Congress to access Trump-era presidential documents related to the Capitol riot.

That raises the most important issue here, which is that Alito and Thomas sit on the nation’s highest court and are poised to rule on matters related to Trump’s attempts to unlawfully hold on to power. In one case, they already have—deciding that the Constitution’s ban on insurrectionists holding office does not disqualify Trump from running for president. The Court is set to rule on a challenge to a federal law used to prosecute the January 6 rioters, and in another case about Trump’s claim that former presidents have “absolute immunity” to prosecution for crimes committed as “official acts” in office. The 6–3 right-wing majority has made its partisan lean unmistakable. But there is still a difference between an ideologically conservative, or even partisan, Court and one with sitting justices whose worldview is so deranged by fanaticism that they would prefer the end of constitutional government to a president from the rival party.

[Read: Trump is getting what he wants]

The most charitable interpretation of Alito’s non-disavowal of the upside-down flag and its meaning is that, because the Court has several forthcoming cases related to Trump’s actions, he wanted to avoid expressing an opinion beforehand. Justices do typically try to avoid opining publicly on matters that come before them, and to avoid the appearance of partisanship, even if they do not always succeed. Perhaps this really was what Alito was thinking when he gave that statement to the Times. The flaw in this defense is that Alito is as shy about sharing his political opinions as a street preacher is in predicting the apocalypse.  

In 2020, Alito warned that liberals were a threat to free speech. In 2021, he attacked the media for correctly reporting that the Supreme Court had nullified the right to an abortion in Texas by upholding the state’s abortion-bounty law, and was poised to overturn that right in the rest of the country. In 2022, he mocked those who criticized his ahistorical ruling in the Dobbs case, which has led to a patchwork of laws that subject women to a gender-based regime of state force and surveillance. In 2023, he ran to the Wall Street Journal editorial page to defend himself after reporters uncovered his cozy relationship with a right-wing billionaire. A few days ago, he warned that “support for freedom of speech is declining dangerously, especially where it should find deepest acceptance,” only he was echoing ubiquitous right-wing rhetoric about liberals on college campuses, not reflecting on Republican-controlled states engaging in a massive campaign of outright censorship. And despite all of these public statements attacking the left, particularly on matters of free speech, Alito has amassed a jurisprudential record suggesting that his interpretation of the First Amendment confers a right to monologue on those who share his beliefs.   

So Alito is no shrinking violet when it comes to his politics. He is very comfortable expressing his political views outside the Court when he feels like it, which is often. If he has discovered the value of the norms of discretion and propriety observed by some of his colleagues, it is a very recent occurrence, as in there hasn’t been enough time for an avocado sitting on a kitchen counter to spoil.

Alito’s apparent sympathy for the insurrectionists should probably not come as a surprise. The right-wing justices are not immune to pressure from their social circles, and minimization or outright endorsement of the January 6 riot became more common and mainstream as Republicans realized that they were stuck with Trump as their standard-bearer. (A man who covets the powers of a dictator is preferable to a Democrat, after all.) The justices, like most partisans, shift with their party’s preferences, and, with rare exceptions, their jurisprudence reflects that. In recent oral arguments related to January 6, Alito’s statements were exactly in line with that shift.

In general, Alito has little compassion for criminal defendants, having sided with defendants the least of all the sitting Supreme Court justices. But Alito suddenly became skeptical of the fairness of the criminal-justice system when the law used to prosecute the January 6 defendants came under review, worrying that it might be used against nonviolent protesters, prompting him to ask Solicitor General Elizabeth Prelogar if hecklers interrupting Supreme Court proceedings would be prosecutable under the same law.

“I think it’s in a fundamentally different posture than if they had stormed into this courtroom, overrun the Supreme Court police, required the justices and other participants to … flee for their safety, and done so with clear evidence of intent to obstruct,” Prelogar replied.

“Yes indeed, absolutely. What happened on January 6 was very, very serious, and I’m not equating this with that,” Alito said. This was apparently a classic Alito disclaimer—the justice frequently offers rhetorical disavowals of arguments he goes on to make. He does this almost as often as he offers Fox News hypotheticals—legal arguments based on stories that have been the subject of right-wing saturation coverage. In his exchange with Prelogar, Alito later asked whether pro-Palestinian protesters blocking traffic and preventing lawmakers from reaching a hearing would violate the law used to prosecute the January 6 defendants.

Similarly, Alito, a former U.S. attorney, offered a rare expression of concern for prosecutorial misconduct—in the context of Trump claiming that he should be immune to prosecution for crimes committed while in office.

[Adam Serwer: The constitution is whatever the right wing says it is]

During oral arguments in that case, Alito raised the cliché of a prosecutor being able to “indict a ham sandwich” and asked the attorney Michael Dreeben, who was arguing the case for the government, “Do you come across a lot of cases where the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so?” When Dreeben replied that “there are such cases,” Alito said, “Every once in a while there’s an eclipse too,” suggesting that it is rare for a prosecutor to fail to get an indictment. Yet earlier this month, Alito joined his right-wing colleagues in ruling that police could continue to legally seize people’s property without charging them with a crime, so his interest in due process appears to be strikingly Trump-specific.

In the Colorado disqualification case and even in the January 6 prosecution cases, reasonable arguments were made on both sides. Allowing Colorado to disqualify Trump really might have led to a mess of states disqualifying candidates for spurious reasons. The law used to prosecute the January 6 defendants really could be used by overzealous prosecutors against undeserving targets. Defendants really do get railroaded by prosecutors, although that is more likely with people who are not wealthy, connected, or powerful—the kind of defendants whose rights Alito is rarely concerned for.

Yet even if we concede the good faith of such arguments, Alito’s motives matter. And his jurisprudence is one that often hinges on his sympathy—or lack thereof—for one of the parties. That much was already clear before the Times reported that the Alitos offered a symbolic gesture of public sympathy for the rioters. What the flag revelation does is offer potential insight into Alito’s interpretation of the events of January 6, and the approach he has taken to the related matters that have come before the Court since. How Alito votes in these upcoming cases will inevitably be colored by this apparent embrace of Trump’s falsehoods about voter fraud, which led to the first and only attempt by a sitting president to prevent the peaceful transfer of power.

One cannot say for certain that Alito has approached these matters the way he has because he supported Trump’s attempted coup. What we can say is that it is not  unreasonable to ask whether a pro-insurrectionist justice sits on the nation’s highest court.