". . . and having done all . . . stand firm." Eph. 6:13

Commentary

Manufactured Alito Ethics Scandal Backfires

May 30, 2024

The Left launches narratives about Supreme Court ethics scandals like Hamas launches homemade rockets, and their latest is another dud. The New York Times (NYT) assigned at least three reporters to find a scandal about Justice Sam Alito, and the best they were able to come up with is two flags at his homes.

Undeterred by this flimsy basis, the left-wing media proceeded with their predetermined strategy of demanding Alito recuse himself from deciding important cases. Senators Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) joined the scheme in a letter demanding that Chief Justice John Roberts force Alito to recuse himself. On Wednesday, Rep. Jamie Raskin (D-Md.) piled on with an op-ed (in the NYT), suggesting that U.S. Department of Justice officials could prompt the entire court to vote Alito off the case.

The only ethics scandal left-wing partisans have revealed by this desperate grasping is their own deficiency.

As National Review’s Dan McLaughlin helpfully summarized, the NYT reports alleged 1) that Alito flew an upside-down American flag and an “Appeal to Heaven” flag at his residences, which 2) are well-known “Stop the Steal” symbols, 3) at a time when Alito was siding with Trump’s efforts to overturn the 2020 election.

One would think that reporters accusing a high-ranking public official of disqualifying ethical failures would have the consistency — or at least the good sense and foresight — to honor their own ethical obligation to not mislead their readers. Yet here The New York Times — once known for “all the news that’s fit to print” — manufactured a narrative that is completely fictitious from beginning to end.

In reverse order: when the upside-down American flag was flown at the Alito residence on January 17, 2021, the Supreme Court was considering no business that could have changed the outcome of the 2020 election.

As for the “Appeal to Heaven” flag (or pine tree flag), The Wall Street Journal’s Kimberley Strassel notes, that “longtime symbol of independence” was “designed by George Washington’s secretary,” “flown on ships commissioned by Washington,” “has been honored, commemorated, and flown over state capitols,” and “is the official maritime flag of the Commonwealth of Massachusetts” (without the John Locke quote). Alito himself professed ignorance of “any connection between this historic flag and the ‘Stop the Steal Movement.’” Even the City of San Francisco — no hotspot of MAGAism — flew the flag in front of City Hall from 1964 until its removal on Saturday, after the controversy hit the national press.

Nor is the upside-down American flag commonly associated with “Stop the Steal.” Flying a flag upside down is a universal distress signal that multiple protest movements have appropriated. Furthermore, “a search of the Factiva news database turns up no articles containing the phrases ‘stop the steal’ and ‘upside down flag’ before the Times report on May 16,” said Strassel.

Finally, Justice Alito did not even fly the flags. For that, his wife, Martha-Ann Alito, was “solely responsible.” Mrs. Alito has flown many flags, including college, sport, seasonal, and other nonpolitical flags. The upside-down American flag, which Alito asked his wife to remove, was not in reference to pending Supreme Court business but to a neighborhood dispute that left Mrs. Alito emotionally distraught.

On Saturday, The Washington Post revealed that the Post’s longtime court reporter Robert Barnes visited the Alito’s home in 2021 — predating the NYT “scoop” by three years. However, the Post “decided not to report on the episode at the time because the flag-raising appeared to be the work of Martha-Ann Alito, rather than the justice, and connected to a dispute with her neighbors.”

In other words, the Post didn’t report on it three years ago because there wasn’t a story. Three years later, after nothing changed but the politics, the NYT has chosen to try and convince the public that there was a story here all along. “This is yet another example,” declared Family Research Council Action President Jody Hice, “of trying to twist the law for political purposes.”

Left-wing activists are not targeting Alito because there is something particularly shady about him, but because he is the conversative justice they have chosen to attack this spring. “Absurd attacks on conservative Supreme Court justices have now become a spring tradition,” quipped the National Review editors. “Given that the Supreme Court tends to issue its major rulings in June, and that the Court now has a conservative majority, the media spend this time laying the groundwork to delegitimize any decisions they might not like.”

Last year, the Left attacked Clarence Thomas for having friends, going on vacation, and managing his money wisely — actions that demonstrate the sort of good judgment I hope all nine justices have. This year, the Left has chosen to attack Alito because, as he put it, his “wife is an independently minded private citizen. She makes her own decisions, and I honor her right to do so.” The same people who criticized Harrison Butker will straight-facedly assert that the independent-mindedness of Alito’s wife disqualifies him from judging certain cases impartially.

“It’s absurd,” protested Judicial Watch President Tom Fitton on Wednesday’s “Washington Watch.” “They’re now literally trying to change the composition of the Supreme Court in key cases, because a justice’s family flew a flag that some leftist nutjob doesn’t like.”

In his letter, Alito patiently explained he could not recuse himself, even if he wanted to, under the 15-page Code of Conduct the Supreme Court adopted in November. “A Justice is presumed impartial and has an obligation to sit unless disqualified,” the Code states. In the presumption of impartiality, readers may hear an echo of the criminal justice system’s principle that a defendant is innocent until proven guilty. The “obligation to sit” language is even stronger. In contrast to lower court judges, who can easily be replaced by a peer, the Supreme Court has no peers. To guard against appellants manipulating the court’s recusal rules, the Supreme Court allows justices to recuse themselves when absolutely necessary.

The Code of Conduct does permit a justice’s disqualification where “the Justice’s impartiality might reasonably be questioned.” This language is found in federal statute, as Raskin noted in his strident op-ed. What Raskin failed to mention is the Supreme Court’s reasonable interpretation of this language, “that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” A rabid progressive reading the NYT’s misleading reports to confirm their prejudices is not a competent judge.

“A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that this event does not meet the applicable standard for recusal,” Alito concluded. “I am therefore duty-bound to reject your recusal request.”

Joshua Arnold is a senior writer at The Washington Stand.