Corrupt insurrectionists have no place on the Supreme Court.
US Supreme Court Associate Justices Samuel Alito and Clarence Thomas in Washington, D.C.(Left: Chip Somodevilla / Getty Images; Right: Olivier Douliery / AFP via Getty Images)
In the wake of the storming of the Capitol on January 6, 2021, and the failed attempt to overturn the presidential election results, hard-core supporters of an insurrection on behalf of Donald Trump started flying the American flag upside-down. The inverted Old Glory was flown not just by the goons who fought with Capitol police but also, shockingly, over the household of a Supreme Court justice. On Thursday, The New York Times reported, “One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel A. Alito Jr., in Alexandria, Va., according to photographs and interviews with neighbors. The upside-down flag was aloft on Jan. 17, 2021, the images showed.” The timing of the topsy-turvy banner is noteworthy: It came a little over a week after the coup attempt was crushed—but before Joe Biden was inaugurated, a tense period when Washington, D.C., had a heavy military presence, as the possibility of further violence hung in the air. According to the Times, the insurrectionist flag flew for “several days” during this anxious and fluid period.
As Adam Serwer of The Atlantic notes, Justice Alito “for his part, as right-wing champions of family values are wont to do, blamed his wife.” Alito told the Times, “I had no involvement whatsoever in the flying of the flag. It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
There are many problems with this claim. However provocative the neighbors might have been, that is no reason to fly an emblem of insurrection. Secondly, even if Martha-Ann Alito, the judge’s mate and scapegoat, did in fact make the decision, Justice Alito should have immediately tried to reverse it, deploying the same swiftness we’ve seen him apply to overturning long-held constitutional rights. The code of conduct for federal judges requires the appearance of impartiality—and nothing can be more partisan than publicly flying a banner that says you reject the legitimate winner of a presidential election. Thirdly, as New York Times reporter Michael Barbara noted, “Crucially, Alito doesn’t deny the flag was flying upside down, doesn’t deny its meaning, doesn’t express any disapproval for it and doesn’t disavow it.”
Rather than take responsibility or disavow the symbol of insurrection, Alito kept digging himself into a deeper hole by offering outrageous and patently false stories about his allegedly provocative neighbors. On Friday, Fox reporter Shannon Bream wrote, “I spoke directly with Justice #Alito about the flag story in the NYT. In addition to what’s in the story, he told me a neighbor on their street had a “F— Trump” sign that was within 50 feet of where children await the school bus in Jan 21.” Bream went on to claim that the neighbor used other slurs and obscenities against Martha-Ann Alito.
Again, even if true, this doesn’t explain why Ms. Alito chose the particular symbol of the upside-down flag. But the story suffers from a major factual problem. As congressional staffer Aaron Fritschner noted, Virginia schools were closed in January 2021 due to Covid. There would have been no school buses or school children to be shocked by the anti-Trumps sign.
Senator Dick Durbin, chair of the Senate Judiciary Committee, is calling on Alito to recuse himself from cases involving the 2020 election, a demand echoed by House Democratic leader Hakeem Jeffries.
This demand is a good first step, but hardly goes far enough. In the Constitution, Congress has more than the power to make demands of federal judges. Congress has both the right and duty to investigate, impeach, and remove federal judges who fail to display “good behavior.”
There are currently strong grounds to impeach not just Samuel Alito but his fellow benchwarmer Clarence Thomas. Both judges have given evidence of disqualifying corruption as well as of their harboring insurrectionist sentiment. Thanks to reporting from outlets such as ProPublica, we know that both Alito and Thomas have been showered with lucrative emoluments from plutocrats who benefit from the court’s pro-corporate stance.
Thomas, like Alito, belongs to an insurrectionist household; Ginny Thomas was in the thick of discussions about reversing the results of the election, with many of the key architects of the January 6 attempted coup.
Adam Serwer dryly but accurately observes, “There may be an insurrectionist justice on the Supreme Court, perhaps two.” As Serwer explains, “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.”
Judges have long been permitted a wide spectrum of ideological beliefs, but sympathy for insurrection is beyond the pale. It cuts to the very legitimacy of the courts and of the American political system.
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Though Alito and Thomas both deserve to be impeached, in politics miscreants rarely get their just desserts. In an exchange on X (formerly Twitter), my colleague Elie Mystal responded to a call for impeachment with a practical objection, “Impeached? My brother… we can’t get congress to pass a bill saying the justices shouldn’t be allowed to take bribes.”
Elie is, of course, right that in the political world as it now exists, impeachment (let alone removal) is out of the question. Democrats are loath to do anything more than to beg the Supreme Court to regulate itself and show some discretion. To even impeach, you need a majority of the House, which the Democrats currently don’t have (although that could change after the fall elections). To actually remove, you need two-thirds of the Senate, which won’t happen in any conceivable future.
Still, raising impossible demands is often good politics, as a way of showing the need for radical reform. In the 1960s, the radical right-wing John Birch Society littered the United States with signs and billboards reading, “Impeach Earl Warren.” Warren was never impeached, but this unsuccessful campaign was the start of a multi-decade project by the hard right to remake the courts in a more reactionary direction. Future Republican presidents, starting with Richard Nixon, wouldn’t repeat Dwight Eisenhower’s policy of nominating liberals such as Warren. The right became more systematic about ideological selection, holding the Republican Party responsible for judges. Ultimately, this was codified, with the Federalist Society doing ideological vetting. The result is a court filled with judges now willing to overturn not just the many precedents of the Warren era but also the earlier liberal jurisprudence of the New Deal, and perhaps even the progressive reforms of the early 20th century.
The slogan “Impeach Alilto! Impeach Thomas!” could, even if those judges continue to serve until their deaths, have the same mobilizing effect for the left as “Impeach Earl Warren” had for the right. It could force the Democrats to realize that they cannot afford to continue tolerating corruption and insurrection in the courts. It would also help delegitimize the current court—a useful exercise, since it is clearly a bulwark of reactionary power. It could fire up the necessary political battle we need now to both dethrone right-wing Republicans from judicial power and to make the courts once again subservient to democratic control. The alternative is to accustom ourselves to living in a political system under the sufferance of insurrectionists.
Jeet HeerTwitterJeet Heer is a national affairs correspondent for The Nation and host of the weekly Nation podcast, The Time of Monsters. He also pens the monthly column “Morbid Symptoms.” The author of In Love with Art: Francoise Mouly’s Adventures in Comics with Art Spiegelman (2013) and Sweet Lechery: Reviews, Essays and Profiles (2014), Heer has written for numerous publications, including The New Yorker, The Paris Review, Virginia Quarterly Review, The American Prospect, The Guardian, The New Republic, and The Boston Globe.