What more is there to say about this Supreme Court, whose conservative majority continues to thumb its nose at accountability and judicial integrity? Even before Samuel Alito’s flag debacle, the conservatives’ conduct had been eroding public trust in the Court. But revelations about the pro-insurrection symbols displayed outside the justice’s homes—and his stunning letter refusing to recuse himself from January 6 cases—have deepened the credibility crisis at the high court.
“People are losing, by leaps and bounds, confidence and trust in the Supreme Court,” Congressman Hank Johnson told me Thursday of the Supreme Court’s ethics scandals, “and thereby losing confidence and trust in the rule of law upon which our democracy is based.”
Alito—who has authored some of the most controversial decisions of the John Roberts court, including the Dobbs ruling overturning Roe v. Wade—was revealed this month to have had an upside-down flag flying outside his Alexandria, Virginia, home in 2021, soon after the January 6 riot. He said his wife, Martha-Ann Alito, had put the flag up in response to a dispute with a neighbor. But it was soon reported that the neighborhood spat in question had happened after the flag was unfurled—and that a second pro-MAGA symbol, the Appeal to Heaven flag, had been displayed outside the Alitos’ other home. That led Johnson and other Democrats to renew calls for stronger ethics rules, as well as for Alito’s recusal from cases related to January 6—including the one focused on whether Donald Trump is immune from prosecution in Jack Smith’s election-subversion case.
But Alito dismissed the recusal calls in a defiant letter to Democrats Wednesday, claiming he had “nothing whatsoever to do” with the displaying of the flags. “My wife is fond of flying flags. I am not,” he wrote, suggesting that anyone who sees even the “appearance of impropriety” is politically motivated. Not even Chief Justice John Roberts, arguably the most moderate conservative on the bench, was willing to entertain an ethics meeting, as he expressed in a Thursday letter to Senate Democrats Dick Durbin and Sheldon Whitehouse. Roberts insisted that doing so would, in fact, compromise the separation of powers between the three branches of government, as well as the high court’s “judicial independence.”
“I think if you’re the Supreme Court of the United States, telling a skeptical public and the Congress to go pound sand is not the appropriate tone,” Whitehouse told me afterward. Roberts’s separation of powers argument was “nearly ludicrous,” added the senator, whose Supreme Court Ethics, Recusal, and Transparency Act ran into stiff GOP opposition last year as Republicans in the divided Senate rallied around scandal-plagued Clarence Thomas.
With Mitch McConnell and his Republican conference seeming no more willing to entertain Democrats’ push for reform this time around, it’s unclear what means lawmakers have to hold the Supreme Court accountable. Durbin—a longtime champion of Supreme Court reform—has said the Alito scandal “demonstrates why the Supreme Court needs an enforceable code of conduct,” vowing to continue the Senate Judiciary Committee’s “thorough investigation” into justices’ “ethical lapses.” But he has also suggested he would not hold additional public hearings on the matter, drawing frustration from watchdogs, who have demanded more robust action from elected Democrats. “This is not how a public servant is supposed to act,” Sarah Lipton-Lubet, president of Take Back the Court, told me Thursday of Alito. “It degrades our institutions, it degrades the Court, and it degrades Congress if he can do it with impunity.”
“Trust in the Supreme Court is at an all-time low, and it should be. It is not currently an institution that deserves our trust,” Lipton-Lubet added. “We should do something about it.”
Congressman Jamie Raskin has suggested a way to bypass Republican opposition, arguing in The New York Times on Wednesday that the Justice Department could intervene and petition the other justices to force Thomas and Alito to recuse themselves—a prescription that Representative Johnson, the lead sponsor of the SCERT Act in the House, supports. “I think the stakes are so high that we can’t be concerned about the appearance that the Department of Justice is being political in insisting that current law be followed,” Johnson told me. “I think Attorney General Merrick Garland has shown repeatedly that he is above politics, and he should not be reticent in using his power to protect our democracy.”
But that would be an extraordinary step, and it’s not clear the DOJ would take it. (Neither the Justice Department nor the Supreme Court returned Vanity Fair’s request for comment. Whitehouse praised Raskin’s argument, but cast doubt on its feasibility: “It runs up against the practicality of this Department of Justice and this court.”)
In any event, it’s clear that it will take substantial reform to “reestablish the credibility” of the Supreme Court, as a Democratic aide to the Senate Judiciary Committee told me, adding that the panel is evaluating all of its options to “help move the ball forward” to that end. “When you see Justice Alito exercise judgments in this case—to claim that a reasonable person would find him to be fair and impartial in these cases, it just causes the public to lose any and all confidence in the Court,” the aide told me. “And that means bad things for our democracy.”
