A flag is an announcement to the world. “This is who I am,” it says, or, “This is what I believe.” We put up a flag because we want other people to see it and know something about us. Which is why the flags that were seen flying outside the homes of Supreme Court Justice Samuel Alito are so revealing. Their presence sent messages about Donald Trump, the 2020 election and a lack of respect for the democratic process. They also mocked anyone who thinks a Supreme Court justice ought to keep up at least the appearance of impartiality.
And they’re one more reason why Democrats should make the Supreme Court more of a campaign issue — not only the damage it has done already, but the threat it poses to the country’s future and the need to reform it. The court’s conservative supermajority has been flying its own flag proudly — a flag of a single party, an ideological movement and a court transformed into a super-legislature, bent on molding the laws we all live under to suit its preferences.
Imagine that for the remainder of his time on the court, Alito wore a MAGA hat during oral arguments.
Last week, we learned that just days after Trump’s supporters stormed the Capitol to overturn the results of an election he lost, Alito’s neighbors spotted an upside-down American flag flying outside the justice’s home in suburban Virginia. While such a display originated as a sign of distress in the military, in recent years insurrectionists adopted it as a symbol of their cause.
Alito blamed his wife, saying she put up the flag as part of a nasty dispute she was having with some neighbors; he explained that one of them had put an anti-Trump sign in their yard that the Alitos felt was directed at them. But shouldn’t a Supreme Court justice’s family be above petty retaliation in a neighborhood spat?
As weak as his explanation was, it fell apart completely when The New York Times reported Wednesday that last summer at Alito’s beach house in New Jersey, a different set of neighbors spotted a flag with a pine tree and the words “An Appeal to Heaven.” That flag was also carried by Jan. 6 insurrectionists and is popular among Christian nationalists who believe the American government should be run according to their particular religion’s dictates.
Imagine that for the remainder of his time on the court, Alito wore a MAGA hat during oral arguments. It might not tell us anything we didn’t already know about his unabashedly partisan sentiments. But it would still be a shocking demonstration of contempt for the role he is supposed to play as a judge.
It’s all the more vulgar when we remember the lengths Republicans go during every Senate confirmation process to pretend that the judges they elevate — all carefully vetted to ensure their unflagging commitment to the conservative cause — actually have no relevant policy beliefs at all, that they care only for the framers’ intentions and the text of the Constitution. While Democratic nominees have also resisted questions about specific cases, Republican nominees, particularly when asked about abortion, have been far more emphatic in saying they have no relevant beliefs.
During Alito’s confirmation hearings in 2006, he was pressed about a memo he wrote as a lawyer in the Reagan administration in which he argued that the Constitution does not protect abortion rights. “That was a statement that I made at a prior period of time when I was performing a different role,” Alito said, insisting that he had undergone a kind of mind-wipe the first time he put on a judicial robe. “When someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.”
This excuse was preposterous. There was never an iota of doubt that Alito intended to overturn Roe v. Wade; when he and his colleagues eventually did, Alito wrote the decision. But while Democrats have quite properly made abortion a centerpiece of their campaigns in the two years since, abortion is only part of the story they need to be telling the American public. For almost its entire history, the Supreme Court has been a force of right-wing reaction, defending the powerful and standing against the expansion of rights and liberties for all. Most Americans don’t grasp that fact; the brief period of progressive rulings running from Brown v. Board of Education in 1954 to Roe in 1973 left too many thinking that there is something liberal about the court. But in the last few years, the conservative majority has become ever more aggressive, not only inventing new interpretations of history and the Constitution but seizing for itself the ability to make and remake law whenever it wishes. The consequences have already been dire: not just allowing states to outlaw abortion but expanding gun rights to a positively insane degree, restricting voting rights, hampering labor unions, ending affirmative action in universities, and striking down any Biden administration policy the conservatives don’t like, among other things. It’s not enough to call for Alito’s recusal in cases involving Trump and the insurrection (which of course won’t happen). Democrats need to hold hearings on the sorry state of the court’s ethics, and President Joe Biden needs to make a case against the court to the public. Not only is it vital to the choice voters have to make in November, but it would lay the groundwork for court reform in the future. If Alito was indeed behind the decision to fly that flag at his beach house, it’s because he believes no one can stop him. And for the moment, he would be right to think so. But that’s only true as long as Democrats let the justices thumb their noses at the country. It’s long past time to impose some consequences.
Paul Waldman is a journalist and author focused on politics and culture. 
