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Justice Alito Responds to the Flag Controversies, Tells Democratic Senators to Pound Sand

Erin Schaff/The New York Times via AP, Pool

Regular readers know that the left has been so sincerely (right!) concerned that flags have been flown over Supreme Court Justice Samuel Alito’s homes. One was an upside down American flag, which generally indicates distress of some kind which is can totally, definitely only be explained by the theory that he is in distress because Justice Alito personally thinks that the 2020 election was stolen. The other is a revolutionary ‘Appeal to Heaven’ flag. The problem with these kinds of controversies is that judges as a rule don’t like to defend themselves in public, unless something in their judicial role calls for it.

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But apparently life handed Alito the chance to speak to the subject. Senators Durbin and Whitehouse sent a letter to the Chief Justice suggesting Alito should recuse himself from certain cases involving January 6th defendants, and so he had to officially decide whether or not to do so. This can be done silently, but we really think Alito wanted to speak up and that is exactly what he did:

As you can see, it links to the full document and you can read it for yourself. And we thought we would take a few moments to provide our analysis.

For starters, it’s up to the justices whether or not to recuse themselves, although there is now a formal code of conduct for the Supreme Court. The key rule is this:

A Justice should disqualify himself or herself in a proceeding in which the Justice's impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.

Thus, it is from a perspective of a person who knows all pertinent facts, who is fair, but the only requirement is doubt, not an actual proof of bias. But the unsaid part of the rule is that Supreme Court Justices, above all other judges in our system, have a duty not to recuse lightly. This is because there is no one to replace them, unlike lower court judges. That's why the rule says 'should recuse' instead of 'shall recuse.' It's still only a suggestion.

He then discusses details related to the upside-down flag:

As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside- down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.

Seriously, we keep hearing people suggest that Justice Alito should ‘control his wife’ or some nonsense like that, and we keep wondering, ‘are any of the people saying this married men?’ This author has been happily married for over two decades and we know better than to think a husband can control his wife in a healthy marriage.

Or maybe they think Alito lives in some kind of The Handmaid’s Tale subculture, where men are in charge, never mind that the book was actually inspired by contact with the Taliban. So maybe they think ‘sure, in my experience men don’t control their women, but I’m sure Alito does.’ It’s basically nutso othering of the Supreme Court Justice and his wife. If you actually met them, they would probably seem like an utterly normal couple. You know, where they are ultimately independent people who make their own decisions.

In any case, Alito speaks a little more about the trouble they were having with his neighbor, writing:

A house on the street displayed a sign attacking her personally, and a man who was living in the house at the time trailed her all the way down the street and berated her in my presence using foul language, including what I regard as the vilest epithet that can be addressed to a woman.

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We’re pretty sure that epithet was the c-word, but your guess is as good as ours.

In any case, Alito notably respects his wife’s independence:

My wife is a private citizen, and she possesses the same First Amendment, rights as every other American. She makes her own decisions, and I have always respected her right to do so.

In other words, ‘no, I will not try to ‘control my woman,’ you pigs.’

Alito also takes a moment to call out the decision of the Biden administration to allow people to picket the justices’ homes, including the way this controversy might threaten to increase those protests:

She has made many sacrifices to accommodate my service on the Supreme Court, including the insult of having to endure numerous, loud, obscene, and personally insulting protests in front of our home that continue to this day and now threaten to escalate.

We constantly hear claims that conservatives engage in stochastic terrorism, but strangely it is never applied to this kind of situation. If someone actually kills a Supreme Court Justice, will the left take any responsibility for it? Other than high-fiving themselves?

He then goes on to say he won’t recuse but we have to think he’s firing a shot back at them:

I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal.

As you will recall, the rule only says that the person has to be ‘unbiased and reasonable’ so adding the terms ‘not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases’ seems like his way of saying that Durbin and Whitehouse were motivated by at least one of those motivations—and probably all three.

As for the Appeal to Heaven flag, he said he had no involvement with the decision to fly flags at all. ‘My wife is fond of flying flags. I am not.’ He goes on to list a large variety of flags she has flown. As for what he knew of her motivations:

She may have mentioned that it dates back to the American Revolution, and I assumed she was flying it to express a religious and patriotic message. I was not aware of any connection between this historic flag and the ‘Stop the Steal Movement,’ and neither was my wife. She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.

That last point is important: Just because another group adopts a symbol doesn’t mean you can’t use the symbol for its original meaning. For instance, in Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995), Clarence Thomas wrote a concurrence where he pointed out that the Klan had adopted the Christian cross as a political symbol for their organization—not just burning a cross but displaying a normal one. But we feel confident that Thomas wouldn’t take that to mean the well-meaning Christians who believe in racial equality cannot still use the cross without morons assuming they are Klansmen. Indeed, Thomas is a catholic so we feel pretty confident that he goes to a church that displays a cross and he probably has at least one cross displaying in his home. We feel equally confident that Thomas is not a member of the Klan and no sane person would think he was expressing any support for the Klan by having those crosses in his life. Just because the KKK used that symbol for evil doesn’t mean that they now own it and no one else can use it for good.

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Alito goes on to note that this was at a vacation home, and, technically, she bought the place with her own money and it is titled in her name. So arguably he doesn’t even have property rights over the place, anyway.

And then he rejects the recusal for that cause, using the same ‘not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases’ language.

We consider it eloquent and authoritative. And the reactions from the left and right were pretty much what one would assume. The left continues to screech, and conservatives cheered the response.

The only arguably exclusively insurrectionist flag is the Appeal to Heaven flag, because it is associated with the ‘insurrection’ of 1776, aka the American Revolution. And if you think the American Revolution is solely the property of January 6, ‘stop the steal’ types, you would be mistaken, although the left is trying to rewrite the history behind that flag as we speak:

Yeah, real mysterious.

Yep, after people started pointing out that they flew this over San Francisco’s city hall—because San Francisco is MAGA country or something—someone decided to take it down. We can’t let inconvenient facts get in the way of the left’s rhetoric.

Well, we like Ron, but we think Alito was downright eager to respond and we don’t blame him.

Seeming verification on the c-word.

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His defense is the First Amendment, you tool.

That’s not what he said, but thanks for playing.

Even the once and future president weighed in:

We have no idea why ‘guts’ is in quotation marks, but it does tell us that Trump almost certainly wrote this post.

Because he doesn’t pretend to control his wife?

Seriously, the same people who claim that a man is a woman if he says he is, suddenly believe in objective meaning? Regardless, the objective meaning is broader than Alito's critics imagine.

No, he is not throwing her under the bus. That would suggest he is blaming his wife, when he is merely saying she can express her own opinions and that is all that happened.

Spoken like a man who has never been married.

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How utterly sexist of Southpaw.

Yes, if we prevent you from murdering another person, that is ‘controlling you.’ You’re a genius.

And, for the record, Alito, Thomas and the other three justices who overturned Roe v. Wade, didn’t make any law banning abortion. They didn’t claim that allowing abortion is unconstitutional and therefore states had to ban it. They simply said that the United States Constitution didn’t contain a right to abortion. And it doesn’t. So, like on most other topics, you can urge your lawmakers to either allow abortion or to prohibit it as you see fit.

You can choose to fly a flag or otherwise express yourself freely, but not murder another person. We have trouble seeing the contradiction, especially since freedom of expression is in the Constitution and the right to an abortion is not.

Tell us you don't understand how separation of powers works without saying you don't understand how separation of powers works.

Oh, come on, Asha, be honest. Do you really think anyone calling on him to recuse himself is doing so based on principle?

No. They are doing it because they are afraid the Supreme Court won’t rule the way they want it to. This is about power, pure and simple.

Yes, he thinks Alito should actually recuse himself because 1) these flags mean nothing but Jan 6., insurrection and 2) Altio has to control his woman. If you question either assertion, his entire argument falls apart.

Yeah, have fun storming the castle. Seriously, remember the time that someone leaked his entire opinion in Dobbs and he was pressured for months to change his mind and then he didn't? To the extent that he notices these outcries, he obviously isn't influenced by them.

Actually accurate.

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The cut off text reads:

Notably, Alito does deny that link with the Appeal To Heaven flag, but not the upside down flag.

First, he does deny it with both flags. Further, he doesn’t have to disavow anything. His wife could have flown a flag that said ‘Joe Biden stole the election’ and it has nothing to do with him.

We always find it curious that people magically know when people on the other side are lying. We doubt this person has ever set eyes on Alito’s neighborhood or the neighborhood of the vacation home, but apparently he knows what happened in both places with such certainty, he feels confident in calling Alito a liar.

Because his wife dared to speak for herself?

We think his post had a typo. He said Ginsburg ‘was an ACLU lawyer and didn’t recuse in cases invoking ACLU’ but we think he meant to say she didn’t recuse in cases involving the ACLU. As a dyslexic, we sympathize and otherwise this is an excellent post.

Not addressed to him? It was literally asking him to recuse himself.

Yes, an interest, as in a financial interest. If this author’s wife won a million dollars tomorrow, it is reasonable to assume this author would benefit from that. Married couples usually pool their finances, so of course they are required to disclose information about their spouse's finances to the public. They are not required to disclose all of their spouse’s opinions and expressions of the same because most sane people recognize couples don’t always agree on everything and you don’t lose your First Amendment rights because you are married to a judge.

But we suppose this is also the left telling on themselves. Many on the left have mixed up politics, and sex and romance in a way that is genuinely unhealthy. We are old enough to remember back when Obama was seeking the nomination of his party in the 2008 presidential cycle. That is, he wasn’t even the Democratic nominee, let alone president, but someone actually wrote this in the Huffington Post:

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Barack Obama is inspiring us like a desert lover, a Washington Valentino. We who have felt apathetic, angry at two (likely) stolen elections, K-Street hegemony, the ‘pornography of the trivial’* in journalism and culture; we who are heartbroken over a war we knew was wrong, we who thought (especially after Baby Bush got in a 2nd time) that America got what it asked for; we who stopped wanting to participate 'cause it doesn't matter whether we do or don't; we have a crush. We're talking about it; we're getting involved, we're tuning in and turning out in numbers we haven't seen in ages. My musician friends and I are writing songs to inspire people and couples all over America are making love again and shouting ‘yes we can’ as they climax!

That’s right, she claimed that people weren’t making love because of politics, but Obama made them decide to have sex again and even shout his slogan as they did. It’s psychotic. But we think this is emblematic of the fact that for many on the left, they just can’t imagine dating, let alone being married, to anyone who disagreed with them on any political topic. We think most normal people don’t place that high a priority on political agreement, but for a cadre of the left, it is everything.

Finally:

If you are having trouble seeing the full picture, here's the same meme:

That’s … pretty good.

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