Justice Alito lets his freak flag fly

President George W. Bush appointed Samuel Alito to the Supreme Court in 2005. Alito, an obscure circuit court judge in Philadelphia, was Bush’s second choice for the job.

The meaning of the Italian word “alito” in English is breath, as in to take a deep breath. Lawyers were left breathless the other day when it was revealed that an upside-down American flag flew for several days in front of Justice Alito’s home in Alexandria, Va. shortly after Jan. 6, 2021. Previously, there had been little doubt that Alito was an extremist judge with radical right-wing biases. Now there is none.

While the flag was aloft, the court was considering a 2020 election case from Pennsylvania, with Alito on the losing side. The issue in the case was whether ballots cast before Election Day but received by mail within three days after Election Day should be counted. An upside-down American flag is generally identified with a republic in distress. On Jan. 6, it was identified with the “Stop the Steal” movement and the Proud Boys, a far-right organization, which participated in the attack on the Capitol. The claimed “steal” was, of course, a “big lie.”

Alito tried to make light of the brouhaha. He said his wife had erected the flag to protest neighbors’ “F— Trump” signs. He said he hardly noticed the flag. Tell me another one.

“I had no involvement whatsoever in the flying of the flag,” Alito said to the New York Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Alito’s impartiality in cases related to the 2020 election and the Capitol riot.

Alito, a former United States Attorney from New Jersey, knows how to slither out of things.

When he flew to a luxurious Alaskan fishing junket in 2008 on the private plane of Paul Singer — a GOP megadonor and billionaire hedge fund operator with major business before the court — Alito claimed he didn’t know what Singer did for a living and was unaware that Singer’s company had pending a major high-profile matter on the court’s docket involving billions of dollars in Argentinian bonds. Singer had frequently litigated high-stakes business disputes before the court. Alito subsequently voted for Singer in a case that handed him a $2.4 billion victory. He failed to report Singer’s treating him to the plane ride and the fishing trip, although the law required him to do so.

Justice Abe Fortas was forced to resign in 1969 over a $20,000 retainer from a foundation controlled by financier Louis Wolfson, who potentially had business before the Supreme Court. Alito still sits.

The flag incident is particularly problematic in light of a statement from indicted Trump attorney Sidney Powell. She said that part of Trump’s post-election strategy was to delay certification of the Electoral College vote until Alito, who sits as Circuit Justice for Pennsylvania’s Third Circuit, could issue an injunction further delaying certification so the election could be thrown into the House of Representatives — where Trump had an advantage, as each state would get one vote to decide a contested presidential election. According to Powell, Speaker Nancy Pelosi thwarted the plot by proceeding immediately to the certification once the Capitol was secured.

Alito is set to rule in two cases involving the Jan. 6 riot. One of these is the matter of Trump’s immunity. Alito has already expressed receptivity to Trump’s claims at oral argument. He even suggested as a policy matter that the peaceful transfer of power would be promoted if the outgoing president did not have to fear criminal prosecution for official acts. Where did he find that one in the Constitution?

There is also the obstruction case, where Alito will get to vote on whether the law against obstruction of an official proceeding applies to the events of Jan. 6; this criminal statute is the heart of the government’s case against the former president.

Alito acts like a legislator — a politician in robes. In Dobbs v. Women’s Health Organization, he wrote the opinion overturning a half-century of super precedent — the landmark decision in Roe v. Wade, which had been reaffirmed by the Supreme Court every time the issue was presented. Roe, a seven-to-two decision, had been concurred in by five Republican-appointed justices, and could not have gone the way it did without them. But those were in the days when judges reached conclusions based on the law, not on the policy preferences of the president who appointed them.

Alito has now gone too far. Some are calling for his impeachment or, at a minimum, his recusal in Trump-related cases. Senators are calling for term limits for Supreme Court justices, which Congress could accomplish despite the constitutional provision guaranteeing lifetime tenure.

Even before the new advisory canons of ethics for the Supreme Court, which Chief Justice John Roberts acceded to reluctantly, justices were not supposed to sit in cases where their impartiality could be fairly questioned. Alito is no exception.

There is too much at stake for our democracy to have these important questions determined by a controversial jurist whose bias and partisan policy preferences override the law.

Sen. Dick Durbin (D-Ill.), chair of the Senate Judiciary Committee, called on Congress to enact the Supreme Court Ethics, Recusal, and Transparency Act, which his committee advanced last July. The bill would require the justices to adopt a binding code of conduct; create a mechanism to investigate alleged violations of that code and other laws; improve disclosure and transparency when a justice has a connection to a party or amicus before the court; and require justices to explain their recusal decisions to the public.

Durbin has been vainly calling on the court to enact an enforceable code of conduct for over a decade. He first sent the chief justice a letter on the subject 12 years ago. It’s high time.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.