Earlier this month, the New York Times reported that in the immediate aftermath of the January 6 attack, an inverted American flag was viewed flying at the residence of Samuel Alito and his wife, Martha-Ann. The news was genuinely shocking, as the upside-down American flag had by that point been seized upon as a symbol by both the insurrectionists who sacked the U.S. Capitol and by more run-of-the-mill election deniers who falsely claimed the presidency had been stolen from Donald Trump. In response, Alito indicated to the Times that, “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs” — but as many quickly noted, this doesn’t fully explain the striking deployment of a symbol sympathetic to insurrectionists in the days following an actual insurrection, Alito’s apparent indifference to the appearance that his household might be in sympathy with the stop-the-steal movement, or the appearance (at a minimum) of judicial conflict of interest given that Alito has sat in judgment in January 6-related cases.
But subsequent reporting by the Times revealed that the Alitos have flown at their home yet another flag (this time at their summer residence in New Jersey, in the summer of 2023) associated with anti-government and insurrectionary behavior — the “Appeal to Heaven” flag that originated in the Revolutionary War, but which has subsequently been re-appropriated by far-right movements. As the later article notes, the Appeal to Heaven flag “is now a symbol of support for former President Donald J. Trump, for a religious strand of the “Stop the Steal” campaign and for a push to remake American government in Christian terms.” The article further reports that according to ethics experts, “it ties Justice Alito more closely to symbols associated with the attempted election subversion on Jan. 6, and because it was displayed as the obstruction case was first coming for consideration by the court.” The timing of the flag’s display in relation to the obstruction case feels particularly damning, suggesting the possibility of a consciousness of intent by Alito, as if he might be telegraphing his intentions.
But to whom, exactly, would Alito have been signaling via appropriated Revolutionary War semaphore? To its credit, the Times provides a revealing history of the Appeal to Heaven Flag (also known as the Pine Tree Flag), which in recent years has been particularly embraced by the bizarrely named right-wing activist Dutch Sheets “as a symbol of his ambitions to steep the country and the government in Christianity.” Sheets is “a prominent figure in a far-right evangelical movement that scholars have called the New Apostolic Reformation,” and has apparently made a habit of gifting the flag to Republican politicians, including former Alaska governor and vice presidential candidate Sarah Palin.
Sheets was heavily involved in stop-the-steal campaigns following Trump’s election loss in November 2020, and the Appeal to Heaven flag was subsequently displayed by multiple insurrectionists on January 6. The Times remarks that, “By that day, scholars say, the flag had become popular enough to sometimes be used by a few other groups, including militia members. But most often, they said, it is tied directly to Mr. Sheets, his contemporaries and adherents and their vision for a more Christian America.”
And this is where the connections between the flag, the movement that’s taken it as a symbol, and Alito get interesting — and disturbing:
[Sheets] placed the high court at the center of his mission. In 2015, the court’s ruling that states must allow same-sex marriage had galvanized the movement and helped it to grow. In a speech three years later, he said, “There’s no gate that has allowed more evil to enter our nation than that of the Supreme Court.”
But Mr. Sheets and fellow leaders described Justice Alito, the member of the court most committed to expanding the role of faith in public life, as their great hope: a vocal defender of religious liberty and opponent of the right to abortion and same-sex marriage.
It strains credulity that in flying the Appeal to Heaven Flag, Justice Alito was not aware of its connection to Sheets’ movement, and that in doing so, he was not implicitly or explicitly sending a message of sympathy to Sheets’ anti-democratic cause.
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At a minimum, the display of the two flags at two different Alito residences cuts deeply against the notion that judges aren’t supposed to show even the appearance of bias regarding the cases they hear. Interviews of ethics experts and other judges reveal the degree to which Alito’s conduct is beyond the pale for a Supreme Court justice. Though the Supreme Court is at this point unbound by any sort of credible ethics regime, such basic notions as appearing unbiased are bedrock enough that Alito surely doesn’t need to reference an official ethics code to know how outrageous the flying of insurrectionary flags might appear.
But we need to think very carefully before we slot Alito’s behavior into simply a generic violation of “ethics” — though it certainly is that as well. Well-meaningly but misleadingly, many have concluded that the flag incidents prove that the Supreme Court requires tougher guidelines to follow, and that Alito’s offenses can in this way somehow be remedied. But this attitude badly understates the depth of his offenses. The indication of sympathy for forces attempting to either overthrow the United States government in open insurrection, or for a movement trying to influence judges with the goal of transforming the United States into an undemocratic, Christian nationalist entity, are not simply ethically wrong. In the display of both the Appeal to Heaven and inverted American flags, Alito has demonstrated the appearance of sympathy for causes that run directly against democracy and the rule of law, of which the Supreme Court is supposed to be a primary defender.
In doing so, he has rendered himself unfit not only to hear cases directly bearing on such issues — such as those involving Donald Trump’s immunity from prosecution and the propriety of certain charges against January 6 defendants — but also any cases involving issues that implicate the rule of law and American democracy. That latter category, of course, involves literally every other possible case that might come before him, for all depend on the rule of law and the government’s legitimacy in promulgating laws. The problem is not that Alito made an error in showing the appearance of bias — which in general terms might indeed be unethical — but what he’s specifically seems to be biased about: the question of whether American democracy should continue.
The far more serious problem, though, and which also transcends mere ethical considerations, is that these appearances of bias may in fact reveal Alito’s actual sympathies and beliefs. Such beliefs can’t be mitigated by an ethics code, for they’re disqualifying qualities in a Supreme Court justice. To determine whether Alito meets this threshold, congressional investigations are called for; depending on the outcome, impeachment should absolutely be on the table. You can be an insurrectionist, or you can be a Supreme Court justice, but you certainly can’t be allowed to be both in a democratic United States.
As Vox’s Ian Millhiser wrote in the wake of the first treason flag revelation, Alito’s jurisprudence on the Supreme Court marks him as a thorough and unremitting hack for the interests of the Republican Party, rather than a staunch and neutral defender of the law as his originalist pretensions would have us believe. In case after case, Millhiser shows how Alito has placed loyalty to the GOP over loyalty to legal precedent or consistency, essentially switching his positions on issues like free speech or criminal rights depending on the ideology of those affected (it is also worth noting that even prior to the flag-flying incidents, Alito displayed very little restraint in voicing his partisan sympathies regarding the GOP).
With such a track record, it’s worth asking whether Alito’s shows of sympathy with insurrectionist causes (January 6, the Christian nationalist effort to impose sectarian rule on the United States, Donald Trump’s quest to return to office despite having attempted a coup to remain in office) are merely instances of the justice going rogue — or evidence as well of his long-standing habit of aligning himself with core Republican interests. After all, to be a Republican politico in good standing nowadays, it’s necessary to adhere to Donald Trump’s position that the 2020 election was stolen from Republicans. Such a party position seems not to be a bridge too far for Alito, given his apparent willingness to have his homes display iconography linked to the stop-the-steal movement. Likewise, at recent oral arguments regarding Trump’s claims of absolute presidential immunity, Alito appeared startlingly sympathetic to the former president’s claims. In one incredible exchange, the justice went so far as to suggest that a president may need to be free from prosecution lest his successor decide to prosecute him for crimes, which could lead to the offending president committing even more crimes in order to remain in office. The idea that a president should be considered above the law in order to preserve the existence of democracy and the rule of law is an argument that only an authoritarian-minded zealot could love — and yet Alito seemed to be making it.
All of this leads me to a contrarian conclusion as to whether Alito acted wrongly in displaying flags associated with rebellion and treason. Rather than acting in an unethical manner that merits a simple reprimand or a promise not to repeat the offense, anyone who supports American democracy needs to understand that Justice Alito has in fact done us all a tremendous favor. By flaunting the symbols of his sympathies for all to see, Alito has shown us who he truly is and what he truly believes. In doing so, he has made the case more graphically and publicly than America’s sharpest pundits ever could that he’s not to be trusted by the democratic majority, and is certainly unfit to serve on the Court. So-called ethics reforms that would ban the treason flags but keep in place the treason justice who yearns to hoist them miss the point entirely, to our collective peril.