The Flag Kerfuffle
I guess everyone is talking about the Trump trial verdict now but I’m still fascinated by the Samuel Alito flag story. You probably know the basics. In early 2021, Justice Alito and his wife flew an upside-down American flag outside their home in Alexandria, VA. That upside-down flag, at the time, was a national symbol of the pro-Trump “Stop the Steal” movement.
The Alitos also flew a second flag outside their vacation home on the New Jersey shore, featuring an image that has been employed in recent years as a symbol of Christian nationalism, though Alito has denied that this was the meaning he and his wife had ascribed to it.
Many people feel that, given such naked expressions of extreme political partisanship, Justice Alito should (at the very least) recuse himself from any cases coming before the high court which pertain to Trump and/or January 6 – such as the monumental “presidential immunity” case that the Court is now deliberating.
Democratic Senators Durbin and Whitehouse sent an open letter last Wednesday to Chief Justice John Roberts, urging him to “immediately take appropriate steps to ensure that Justice Alito will recuse himself in any cases related to the 2020 presidential election and January 6 attack on the Capitol.”
Roberts has refused to pressure Alito to recuse himself. Alito, for his part, replied in writing to the senators. Here are some relevant excerpts from Alito’s response letter (which has also been made public):
I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside-down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.
My wife and I own our Virginia home jointly. She therefore has the legal right to use the property as she sees fit…
… I note that she was greatly distressed at the time due, in large part, to a very nasty neighborhood dispute in which I had no involvement. A house on the street displayed a sign attacking her personally, and a man who was living in the house at the time trailed her all the way down the street and berated her in my presence using foul language … My wife … [has had] to endure numerous loud, obscene, and personally insulting protests in front of our home that continue to this day and now threaten to escalate.
….
My wife is fond of flying flags. I am not. My wife was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years …
The Fundamental Question Here
Okay. There’s lots of learned commentary online as to why the “my wife did it” excuse doesn’t really cut it. There exist codes of public conduct for Supreme Court justices, but I’m not going to rehash all that.
For the moment, I just want to take a step back and observe that the fundamental issue is whether – having evinced such a strong, blatant political and cultural bias – and having done so with a public display, no less – Justice Alito can still execute his judicial duties in a “fair and impartial” manner.
Before you laugh sarcastically at that (non-rhetorical) question, let’s step back yet again and ask what “fair and impartial” really means.
First of all, let’s face it. Everyone has biases. Every Supreme Court justice ever appointed to serve has come to the bench with certain core beliefs, loyalties, value systems, and predispositions that have colored their judgment.
I can imagine someone saying now, “But then the question is: to what extent do they let those personal preferences influence their judgment? How willing are they to set aside their biases when they rule?”
I’d frame the question a little differently, like this: “How sincerely, when a new justice takes their oath of office, do they commit themselves to conducting their deliberations, engaging with their fellow justices, and evaluating the arguments presented by attorneys who appear before them on the basis – first and foremost — of Reason?”
The Sacred Meeting Ground
Faith and ideology sit very deep within a person. Their directive power is formidable. They are far more elemental and foundational than Reason. They are “the myths we live by.”
As Jonathan Swift wrote back in 1721, “You cannot reason someone out of something he or she was not reasoned into.”
For the most part, I accept that, and I’m even okay with it. Reason and logic are high-level human faculties – great blessings! — fantastic gifts! – but I don’t necessarily think they are always superior to “irrational” intuition or the inarticulate wisdom of the heart. In fact, I feel our profoundest guiding lights in life originate somewhere other than our prefrontal cortexes.
But that said, one thing Reason has going for it that makes it unique from other forms of knowledge or conviction or truth-seeking, is that everyone – unless they’ve been badly brainwashed or brutally conditioned – has access to Reason as a tool for making decisions, arriving at conclusions, and navigating life. The capacity to employ Reason is an inborn human birthright… and a universal cognitive language.
It’s not perfect, it’s generally not flashy, but it’s phenomenally useful. And when people are committed to resolving differences on the basis of Reason – rather than, say, on the basis of faith or passion – it can be remarkably functional.
Funny thing: Reason, on its face, is the most secular persuasive force we have at our disposal. The most unadorned, the most common, perhaps even the most prosaic.
But that’s what makes it sacred: its commonality, its accessibility. Particularly in political and legal contexts, I would venture to call Reason an exalted human meeting ground.
So what freaks us out (or what freaks me out anyway) about Alito and his flags is that it seems like some sort of in-our-face declaration of “Yup! I make decisions that impact millions of people and I say FUCK REASON! I know what I think already, and I know what I want, and that’s how I’ll rule – and that’s the only game there is anyway. Who do you think you’re kidding, to imagine otherwise? And by the way, people have been rude to my wife!”
Unpleasant Neighborly Dynamics
Well, he’s right about that last part at least. Neighbors were rude to Martha-Ann Alito. According to this article from Wednesday’s New York Times, which provided some nitty-gritty background to the Alito neighborhood commotion story, one of the (female) neighbors actually admitted to calling Martha-Ann “the c-word.” The only dispute about it was who verbally abused whom first.
And same thing with the flag! The Alitos assert that Martha-Ann indignantly hoisted the upside-down USA flag in response to some neighbors’ prominent “FUCK Trump” sign, though that too is disputed, not as to the signage itself, but as to the respective timing of the respective displays.
So it seems the whole brouhaha, which has since garnered national attention, has its roots in a petty squabble between politically unaligned, unfriendly neighbors. And of course “Who started it?’ always seems to be the operative question in these types of situations, as if “justice” might somehow be derived if we can identify the original culprit.
No one ever seems to ask, “Who will end it? Who will stop first?”
Personally, on an emotional level, I kinda resonate with the “FUCK Trump” sign, but I don’t quite see the point of displaying it, other than to upset someone. As a political statement, it doesn’t strike me as persuasive. It’s not, shall we say, an expression of Reason.
Similarly, according to the above-mentioned Times report, those same neighbors also participated in “clamorous protests” in front of the Alitos’ home after Alito authored the Dobbs decision, which overturned Roe v. Wade and stripped women of the right to choose abortion.
Now, I can understand the outrage. I think it was a terrible ruling. I might also be tempted to impugn Alito’s integrity. That is, I think he knew all along, including during his confirmation hearing in 2006 when he slid past the question, that he would vote to overturn Roe given the opportunity.
Still, it’s one thing to protest in front of the Supreme Court building itself, and quite another to disturb and violate the sanctuary of a man’s personal home. I mean, sure, you can say that the protesters’ intrusion into the Alitos’ personal space (by staging a cacophonous ruckus in front of their house) pales in comparison to the far more intimate intrusion Alito himself had just visited upon the bodily autonomy of millions of women. I wouldn’t argue with that.
But then the question remains, if you’re one of the neighborhood protesters, What are you actually doing?
Do you see your protest as, perhaps, some potential deterrence against further offenses by Alito (or other justices)? Or better yet, do you envision that your expressions of anger might somehow catalyze – or indirectly contribute to – an eventual reversal of the Dobbs decision?
That’s all a bit of a stretch, isn’t it? So again: What are you doing?
Is your “clamorous” demonstration a form of retributive justice on Alito? Are you punishing him for his sins? Well, if so, it’s not for me to pronounce whether that’s reasonable or not, but I’ll point out two things. One, if punishment is the point, then you are signing on to a value system that elevates retributive justice; i.e. revenge. And two, you are deputizing yourself to administer that retributive justice.
My Dinner with the Alitos
I would love to see Alito removed from the Court entirely. I deem him an obnoxious, narrow-minded, petty-spirited jurist and public figure. The worst.
Nonetheless, if he and Mrs. Alito lived nearby, I’d be very civil and friendly with them. I’d make friends with their dog if they had one (and if they let me). I might even invite them to dinner, just to be neighborly and also out of curiosity to see if they could truly be pleasant. After all, according to the Times piece, the “FUCK Trump” family actually received a Christmas card from the Alitos last year that said “May you have PEACE.” If they’re capable of sending a card like that to their antagonists, I’d certainly be open to liking them on a personal level.
I’m completely and uncompromisingly pro-choice, with no restrictions, no ifs, ands, or buts. I think a woman should have dominion over her own body, period. But I get that there is another argument, which is that once a woman is pregnant, it isn’t just her body anymore. She’s now sharing her body with another being who has equivalent inalienable rights. I don’t see it that way of course, but obviously some people do.
Fortunately, the Alitos and I would not need to settle this issue over dinner, during which I would quietly entertain the possibility that they are as convinced of their political views as I am of my own, and that they’re not just cynical devils in Christian clothes.
I would also silently hope that, when he returns to work, where such issues must be addressed and even adjudicated, Mr. Alito would exhibit at least some allegiance to Reason over ideology.
And of course, one of the hallmarks of reasonableness is being persuadable — not simply seeking to “win.”
We Need It Now More than Ever
I feel like there should be some language in whatever the Supreme Court oath is, stipulating not only loyalty to the Constitution and the rule of law, but also to the rule of Reason. That is, a commitment to come to their hallowed deliberating table (or wherever it is they sit together) with an agenda to be reasonable, above all. To follow Reason. To let Reason guide their thoughts and the direction of their coalescing opinions.
As a society, we depend on the justices for that, though we rarely consciously think about it in those terms. Indeed, we depend on our entire judicial system to have Reason at the core of its soul … even if we don’t enshrine Reason in our own lives.
Look. Trump just got out of trial and called the whole court proceeding “rigged.” I think he even said that our entire country is “rigged.” He never offers evidence, only hyperbole and aggressive emotion. He assaults Reason continuously.
Let’s protect Reason. Let’s practice it with each other. Let’s do what we can to promote it, in both private and public spheres. It’s just about our only common ground with people who fundamentally disagree with us. (Civility too is very helpful.)
Not everyone is willing to be reasonable. HOWEVER, most people – even if they try to deny it, even if they shut their ears to it – will still hear Reason. They can’t help it. Reason quietly penetrates.
I think, overall, Reason is a force for good.
My prayer tonight is that we remain a society governed by Reason, not just anarchic passions.
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