A reasonable argument can be made that U.S. Supreme Court Associate Justice Samuel Alito should not have been nominated in 2006 to the nation’s highest Court by former President George W. Bush.
As an appeals court judge, Alito had written what the ACLU called a “series of troubling decisions on race, religion, and reproductive rights.” These decisions were a harbinger of Alito’s allegiance to conservative politics over the constitution; in other words, the goal of politics is more important than the rule of law through his judicial lens.
This conclusion was given credence in recent weeks by two bombshell reports in the New York Times—both of which contained indisputable evidence that in the wake of the January 6, 2021 insurrection, flags supporting the coup attempt and White Christian Nationalism were hoisted at Alito’s primary residence outside Washington, D.C. and his vacation beach home in New Jersey.
The flag flown at his residence was an “inverted American flag”—one carried by the January 6 insurrectionists—was seen and photographed in the days following the Capitol attack, and the flag flown at his vacation beach home—an “Appeal to Heaven” flag once used in the Revolutionary War but now used in support of White Christian Nationalism and Donald Trump—was seen last summer.
Both flags are symbols of a blend of nationalism, racism, and beliefs in QAnon conspiracies, including support for a violent overthrow of Democratic rule to install a white-controlled authoritarian government.
These are the two symbols Justice Alito either hoisted or allowed to be hoisted at his two homesteads—a clear, irrefutable public message that his political views, as bizarre as they are, are more important than his judicial integrity, as little as it is.
In a May 22, 2024 report, Forbes Magazine called attention to some of Alito’s past behaviors and court decisions that underscore his long held ultra-right wing political ideology: his college-days involvement with a Princeton University alumni group that didn’t allow women or minorities as members; his vocal “not true” opposition to former President Barak Obama criticism of the Court’s handling of a campaign finance ruling during a State of the Union address; his anti-LBGTQ dissent decisions in which he labeled these alternative lifestyles as a “new orthodoxy;” a 2020 speech to the right-wing Federalist Society in which he declared that COVID-19 restrictions infringed on individual liberties, a political sentiment then being pushed by the right-wing political establishment; and his leading role in having Roe v. Wade overturned with the Dobbs decision written by him in which he gave legal credence to a 17th century “witch trial” jurist who believed and ruled that husbands could not be prosecuted for raping their wives.
Recorded comments by the Justice, recently released by documentary filmmaker Lauren Windsor, continue to raise questions about his impartiality, especially regarding culture issues and litigation involving President Trump.
With this sordid and tarnished judicial background and in the wake of the two recent racist flag hoisting, calls from respected legal scholars and Democrats have called for Alito to recuse himself from two cases pending before the Court concerning the January 6 attack on the Capitol.
Justice Alito should step aside. Justice Alito is either cloaked with the appearance of bias or is judicially unfit to participate in either or both of these cases.
If Justice Alito does not voluntarily step aside as basic common sense and fairness demand, Chief Justice John Roberts should invoke Canon 2 (A) & (B) of the Supreme Court’s Code of Conduct, adopted on November 13, 2023, to remove him from any decision-making role in the cases.
Judicial integrity demands no less.