When Supreme Court justices fly their true colors
And why Biden's second term should focus on forcing them back down
Over the past decade or so, the U.S. Supreme Court has been experiencing a kind of de-mythologization. The contentious nature of Donald Trump’s appointments to the court - remember Brett Kavanaugh shouting “I like beer!” a dozen times during his confirmation hearings? - has combined with controversial and inconsistent decisions to produce disillusionment. The idea that the Supreme Court is a temple of wisdom whose members are selflessly dedicated to ascertaining and preserving the truth about the constitution has become much harder to sustain.
I think that liberals sometimes under-rate the extent to which this idealized view was anyway very much a product of specific circumstances, namely the many progressive achievements of the Warren (1953 - 69) and Burger (1969 - 86) courts. This decades-long period delivered major wins for legal progressives, including the end of segregation and bans on miscegenation, the recognition of a right to obtain both abortions and contraception, and some major wins for free speech. The sheen started to come off in the 1980s, but it took even the Roberts court (2005 - present) a long time to start undoing the major planks of the progressive legal revolution. In the meantime, wins (like Lawrence v. Texas) kept accumulating alongside losses (like Bush v. Gore).
This era came to an unambiguous end around 2010, with major rulings on campaign finance (Citizens United v. FEC) and voting rights (Shelby County v. Holder) driving the nails into its coffin. But it’s worth realizing that an idealized view of the court has not actually been the norm throughout American history. Perhaps the biggest travesty in the history of the Supreme Court is Dredd Scott v. Sandford, an 1857 ruling which held that the constitution did not extend the right of citizenship to people of black descent. Its authors intended it as a flagrantly political act, one designed to quieten the growing controversy over slavery. Instead, it played a major role in the onset of the Civil War. To most Americans of the 1850s - or the 1930s, when conservative justices struck down key parts of Franklin Roosevelt’s New Deal - the idea that Supreme Court justices were disinterested sages would have been ludicrous.
It’s also the case that while many of us look back on the Warren and Burger courts as times of great legal progress, many conservatives see something different: activist justices with a biased liberal agenda, shredding the constitution in order to achieve their goals. Constitutional interpretation is enough of an art rather than a science that it’s possible to twist it towards almost any end, particularly if you don’t care about being consistent or paying attention to the historical and legal record. During its wilderness years, that’s what the conservative judicial movement set out to do - and we’re now seeing the results.
Flying their true colors
All of this brings us to Samuel Alito.
Alito is a conservative justice who was appointed to the Supreme Court by George W. Bush in 2006. He’s a fully paid-up member of the conservative legal movement - a Federalist Society member and the author of the decision that overturned Roe v. Wade in 2022.
He’s also, apparently, an insurrection fan.
The New York Times recently carried two stories about flags which were seen flying at Alito’s residences in recent years. One flag, which was aloft at his main home shortly after the January 6th insurrection, was an upside-down American flag, a symbol which at the time was widely associated with the movement to illegally nullify the results of the 2020 election. The other was a so-called “Appeal to Heaven” flag, which was also carried by insurrectionists on January 6th and is more broadly a symbol of Christian nationalism. The Appeal to Heaven flag was seen flying at Alito’s beach house in summer 2023.
As I’m writing this, Alito hasn’t responded to the story about the Appeal to Heaven flag, but his explanation for the upside-down American flag sparked widespread incredulity. According to him, his wife briefly flew the flag after getting into a dispute with an anti-Trump neighbor. Quite why arguing with a neighbour would cause you to signal support for a violent insurrection was something he didn’t explain, and I really worry about what might happen to the constitution if Alito’s neighbor gets a dog who won’t stop barking.
I think that the flags have really hit a nerve for two different reasons, and it’s worth separating those reasons out. The first is that they seem to be flagrant assertions of political and ideological bias, proof that even a justice of the Supreme Court is not immune from the political pull of the moment. They lift up the robe and reveal the man underneath.
But this reason alone is not quite enough to spark the level of outrage that the news has received, because by now I don’t think there are many people left who don’t realize that this is how the Supreme Court works. And to some extent, it has ever been thus. Justices have always adhered to particular judicial and political philosophies and their philosophies have heavily influenced their decisions. Franklin Roosevelt even appointed a former Democratic Party Senator, Hugo Black, to the Supreme Court. The “Appeal to Heaven” flag is abhorrent to me because I don’t believe that the United States should be a theocracy, but it’s not like we didn’t already know that conservative jurisprudence draws heavily on Christian ideas, and that Sam Alito believes in conservative jurisprudence. It’s less interesting for the information it communicates than for the confidence it reveals about the Christian nationalist project - in 2024, with a 6-3 majority on the court, Alito can really let his flag fly.
What’s much worse about the flags is that they signal support for a particular political project - Trump’s MAGA movement. The MAGA faction of American politics explicitly rejects the constitution and America’s democratic tradition. It also, unsurprisingly for a movement built on unconstitutional ideas, frequently has business before the Supreme Court. Flying flags associated not just with that movement in general, but specifically with its attempt to nullify the result of a democratic election, displays a level of brazenness and subservience which beggars belief. It also has little or no precedent in the history of the court.
What now?
This is not an academic issue, but a very live one. The Supreme Court is as we speak deliberating over whether Trump ought to be able to escape prosecution for his role in the same insurrection that Alito apparently supported.
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