Why the Justice Alito flag flap matters — even if he blames his wife

by Peter Jensen

When I entered the world of professional journalism more than four decades ago, I quickly discovered that certain colleagues felt so strongly about the mere appearance of political bias that they abstained from voting. This is not true of most reporters, but you can still find some who choose not to affiliate with a political party nor even to cast a ballot. They liken it to umpires calling balls and strikes. What if the men and women behind the plate had skin in the game for one team over the other? Or just the appearance of such?

This was how seriously they took their jobs. They were willing to surrender their ability to vote, one of our most precious rights, for the sake of what they viewed as an even more important role in a democracy.

My own views are not quite so extreme, but they have been consistent. I vote, but I do not lend any direct support to a candidate, not a campaign contribution, not a yard sign, not even a petition signature. And my wife has followed suit. This was true even when a close family friend ran for office. And keep in mind that for the last 20 years or so, I’ve been an opinion writer. My role is to assert my point of view, not to be neutral. Yet even so, I don’t believe I should be actively campaigning for a candidate, a party or a cause. My job is more like that of a judge — to weigh the pros and cons of any circumstance and then render an opinion.

I mention all this because I am flabbergasted that any member of the U.S. Supreme Court — or their significant other — could have even the slightest doubt about the importance of neutrality. Yet that seems to be the case with Supreme Court Justice Samuel A. Alito Jr. Outside his home in Alexandria, Va., an upside-down American flag, a symbol of the “Stop the Steal” protest, was flown for an undetermined period of time. It was even photographed flying on Jan. 17, 2021, the image shared with The New York Times by a neighbor. The act was clearly meant to show solidarity with the Jan. 6 rioters, although Justice Alito told the Times that it was “briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

That’s not much of an explanation. First, it seeks to casually justify an act of pettiness, a behavior ill-suited for a justice on the highest court in the land. But second, it suggests that either his wife was unclear about his day job (unlikely) or just didn’t care. Oh, and the family seems perfectly fine with claiming the 2020 election was stolen. Who thinks for even a nanosecond this is appropriate? Happily, my neighbors aren’t given to posting obscene messages on signs, but if one did, I feel confident it would wind up before the homeowner’s association, not escalate into a demonstration of who can sink lower faster.

Granted, there’s no shortage of incivility and nastiness in the public square these days. From graduation ceremonies to congressional markup sessions, the nation seems to be on something of a streak of churlishness with a bit of racism and misogyny thrown in. And that’s without mentioning Donald Trump’s bizarre tribute to the fictional Hannibal Lecter, a mass-murdering cannibal he apparently prefers to immigrants. Seriously, you can’t make this stuff up.

Judges aren’t supposed to be like that. Since this incident was first reported by the Times last week, there’s been a call for Alito to recuse himself on pending cases related to the Jan. 6 insurrection. That’s reasonable. How can Americans have any faith whatsoever in the justice’s impartiality? This isn’t just about what might be in his heart. It’s also about appearances. And it’s pretty hard to display bias quite as flagrantly as an inverted flag.

But I would go further and suggest that the 74-year-old jurist ought to step down from the bench entirely. Judges aren’t politicians. They aren’t even journalists. They’re supposed to be above all that. This is not a new standard. Judicial independence is a longstanding tradition in this country. Supreme Court employees aren’t even supposed to display bumper stickers on the back of their cars. This didn’t just cross a line — it obliterated it and then hung it upside down for the world to see. Or have we stopped caring about judicial impartiality?  

Peter Jensen is an editorial writer at The Baltimore Sun; he can be reached at pejensen@baltsun.com.