Samuel Alito Brings the Culture War to His Own Front Yard

Even by the current debauched standards of right-wing federal jurisprudence, it came as a shock to learn that just days after the attempted coup of January 6, an upside-down flag flew outside the home of Supreme Court Justice Samuel Alito in Alexandria, Virginia. Then a widespread symbol of solidarity with the “Stop the Steal” lies of the MAGA right, the flag was captured in photos recently obtained by The New York Times.

Under both long-standing tradition and the provisions of the high court’s ethics code for its own employees, representatives of the court are supposed to refrain from expressing partisan political attachments. And of course, brandishing the symbol of an illegal uprising founded in baseless claims about an illegitimate election is a good deal more confrontational than a bumper sticker or yard sign advertising support for a candidate or a ballot initiative—it’s something closer to a formal declaration of secession. It’s also, at minimum, cause for Alito to recuse himself from the two January 6 cases now up before the court—including the Trump petition for total legal immunity for sitting presidents. Other ethics charges against Alito would be warranted—if, that is, the high court’s ethics protocols weren’t so porous and self-serving.

Alito, who together with Clarence Thomas forms the hard-right vanguard on the high court, followed Thomas’s example when confronted with the prospect that his belief system could play havoc with his standing on the court: He blamed his wife. In an e-mail statement to Kantor, Alito claimed that the charged symbolic gesture was rooted in his wife’s displeasure with a neighbor’s vulgar anti-Trump yard sign. “I had no involvement whatsoever in the flying of the flag,” Alito said. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

To revert to some objectionable language of my own: what bullshit. It is, first of all, beyond parody for the justice who authored the egregious majority opinion hijacking the bodily autonomy of American women in Dobbs v. Jackson Women’s Health Organization to profess that his life partner has uncontested domestic sovereignty in the adoption of exterior political messaging. Also bullshit is his claim that his wife “briefly placed” the upside-down flag outside their home; the Alexandria neighbors interviewed by the Times said that it was there for several days. Even after just one day in position, the argument that it was an entirely unilateral work of Martha-Ann’s falls apart on its face; any adult sharing close living quarters with a militant flag-brandishing partner would then put some variation of the question Just what the hell are you up to, sweetheart? to said partner, and the ensuing exchange would result in either spirited dissent and flag removal or (the clear outcome here) harmonious consent and mutual self-satisfaction.

Meanwhile, there are some indications that the Alitos’ fealty to the cause of government overthrow may have gone beyond front-porch symbolism. At least according to the account of indicted Trump attorney and coup-plotter Sydney Powell, the ultimate aim of the “Stop the Steal legal offensive” was, after fomenting sufficient chaos and disruption ahead of Congress’s scheduled certification of the 2020 election outcome, to deliver the whole raging mess over for Alito’s sympathetic review in order to straighten it out in Trump’s favor. From this vantage, the message of the hoisted flag may have been intended as much to signal Alito’s continued adherence to the coup plot as to get a rise out of his vulgar liberal neighbors.

Finally, there’s the question of commensurate response in the politics of yard-centric retaliatory messaging. The sign that provoked the Alitos brandished the forceful if unimaginative slogan “Fuck Trump”—but there’s no discursive equivalence between that show of personal political distaste and a call to arms seeking to menace Congress into overthrowing a free and fair election and instituting a right-wing dictator. (What’s more, in defending the flag’s placement, Alito piled lie upon lie: In a follow-up interview with Fox News, he professed outrage that the neighbor’s coarse anti-Trump message was posted within 50 feet of the school bus stop for neighborhood kids—the only problem being that the Alexandria public schools weren’t holding in-person classes due to the Covid lockdown.)

No, the central ingredient in the great Alexandria flag flap is clearly the same thing that has driven Alito’s legal reasoning throughout his career: a posture of unappeasable, ever-renewable cultural grievance. It’s right there in his writings—not merely in the notorious Dobbs ruling, whose crackpot originalism threatens any claim to rights not enumerated in the Constitution’s holy writ, but in self-dramatizing asides in other opinions. His dissenting opinion in the court’s 2015 Obergfell v. Hodges decision legalizing gay marriage, for example, disputed that religious opposition to the practice still enjoyed First Amendment protections: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes,” he observed archly. “But if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

Since Antonin Scalia’s death in 2012, Alito has become the public face of the court’s hard-right ethos, taking up the cause of cultural resentment with singular brio. In a revealing 2022 New Yorker assessment of Alito’s career on the bench, Margaret Talbot depicts a longtime legal backbencher in the conservative movement now gleefully exacting revenge on his enemies in the culture wars. In a 2008 speech at a fundraising event for The American Spectator, Alito declared, after invoking the apparently united cultural front of Barack Obama, Eugene McCarthy, and Country Joe and the Fish, that “for the past forty years there have been places in this country, sort of like the island in ‘Jurassic Park,’ where it’s always been 1967.”