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It was nearly 24 hours ago when the U.S. Supreme Court handed down a ruling in a closely watched case. Some far-right corporate interests had launched a rather outlandish case targeting the Consumer Financial Protection Bureau, and the increasingly radical 5th Circuit Court of Appeals had sided with the plaintiffs. Would the nation’s highest court go along with the transparently nonsensical foolishness?
Fortunately, no: In CFPB v. Community Financial Services Association, the justices — including most of the dominant conservative faction — sided with the agency and its funding structure. Noting that Justice Clarence Thomas wrote the decision, Slate’s Mark Joseph Stern’s piece appeared under a headline that read, “Even Clarence Thomas can see that the 5th Circuit is just making up nonsense.”
My MSNBC colleague Jordan Rubin added, “It’s a sign that your legal theory is too extreme when Justice Clarence Thomas leads a lopsided majority in rejecting it.”
The decision, however, was not unanimous — even though it should’ve been. As ridiculous as the case was, and as absurd as the appellate court’s ruling was, Justice Samuel Alito was one of just two justices to rule against the Consumer Financial Protection Bureau anyway. It was a timely reminder of just how radical a jurist he is.
That’s how yesterday started. As the day ended, The New York Times published this report.
After the 2020 presidential election, as some Trump supporters falsely claimed that President Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American flag. One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel A. Alito Jr., in Alexandria, Va., according to photographs and interviews with neighbors. The upside-down flag was aloft on Jan. 17, 2021, the images showed.
In case this isn’t obvious, Jan. 17, 2021, was just 11 days after the Trump-inspired attack on the U.S. Capitol — featuring insurrectionist rioters carrying the same flag that flew at Alito's home — and just three days before Joe Biden’s presidential inauguration, when there was ongoing uncertainty about the threat of far-right political violence.When I first saw images from the Times report circulating on social media, I was initially skeptical. Maybe the photos had been manipulated. Perhaps they were AI generated. Maybe there was a prank and some activists had hoisted the flag at Alito’s home in order to make him look bad.
But that’s not what happened. Rather, the photographs were real and legitimate.
The Times’ report added, “While the flag was up, the court was still contending with whether to hear a 2020 election case, with Justice Alito on the losing end of that decision.”
By way of an explanation, the justice told the newspaper that he wasn’t involved in the display, adding, “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
Alito didn’t disavow the upside-down flag or deny its significance. He did, however, blame his wife — which is every bit as unpersuasive as it seems.
The Times’ report added, “Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot. The mere impression of political opinion can be a problem, the ethics experts said.”
The article quoted Amanda Frost, a law professor at the University of Virginia, saying this was “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases.”
Stepping back, there are a couple of related angles to keep in mind. The first is that Alito doesn’t exactly have a deep reservoir of credibility he can turn to in response to a controversy like this one.
We are, after all, talking about a sitting justice who has earned a reputation as the high court’s most unyielding ideologue, who has delivered a series of overtly political speeches, who’s issued public endorsements of a conservative advocacy group’s work, who thought it’d be a good idea to defend the Supreme Court’s integrity at a pro-Trump organization exactly two weeks before the 2022 midterm elections, who’s appeared a bit too cozy with the Wall Street Journal’s editorial page, and who’s declared his indifference to congressional oversight in ways that were panned as “stunningly wrong.”
These latest revelations, in other words, are gross on their face, but they’re even more offensive given the larger pattern of highly dubious conduct.
But the other angle of note is the challenge facing Supreme Court Chief Justice John Roberts. From a distance, it’s relatively easy to believe that the conservative justice genuinely cares about the high court as an institution. Roberts no doubt wants the public to trust and respect the Supreme Court. He expects the public to look to the court as a neutral arbiter that Americans can count on to be fair.
With this in mind, it’s important to realize that the chief justice has some important work to do.
Ethics scandals. Leaked rulings. A deteriorating public image. Radical and unpopular decisions. Growing assumptions that the justices are partisans who pick a preferred conclusion and then work backwards to justify it. Alito’s latest controversy — the latest in a series — makes an ugly situation worse.
If Roberts doesn’t realize that he needs to get his house in order, he’s making a terrible mistake.