As The Legal World Turns….

The news that a symbol supporting the January 6th insurrection had hung outside Justice Alito’s home was stunning. It was so outside everything lawyers have been taught about proper judicial behavior and ethics that anyone who has ever studied the law, or the role of the courts, was incredulous. If there was any doubt about its significance, or the dishonesty of Alito’s attempt to blame his wife, a subsequent report–with photos–shows that Christian Nationalist “Appeal to Heaven” flag, used by January 6th insurrectionists, flew for two months at Alito’s beach house.

As Robert Hubbell writes, “Alito is signaling his partisan allegiance and Christian nationalism. As I wrote yesterday, we should take him at his word. If we do not, he will continue to vote for outcomes and write opinions that are antithetical to the liberties guaranteed in the Constitution.”

It doesn’t really require legal training to understand how profoundly Alito violated norms of appropriate judicial behavior. If a local judge flew a flag supporting one side of a case over which he was currently presiding, ordinary citizens–not to mention the local bar association–would immediately demand removal of both the case and the judge.

I may feel this incredible impropriety more strongly because I approached the teaching of my policy classes through a constitutional lens. I taught my students that the Constitution and Bill of Rights constrain policy choices–that legal precedents determine the boundaries of legitimate government action. I’ve previously explained that Alito’s Dobbs decision threatened far more than reproductive rights–that it undermines a longstanding legal doctrine that draws a line between permissible and forbidden government interventions.

I’m no longer teaching, and I really don’t know how I would handle the reality that “settled” constitutional interpretations are being routinely ignored by Justices on America’s highest court, so I sympathized with the law school professors interviewed on that issue by The New York Times. As one said,

One of the primary challenges when one is teaching constitutional law is to impress upon the students that it is not simply politics by other means,” he said. “And the degree of difficulty of that proposition has never been higher.”

That difficulty was addressed by the professors interviewed by the Times. As several noted, teaching constitutional law has for many years been based on an underlying premise: 

That the Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the court’s integrity, than in imposing a partisan agenda.

The premise no longer holds today. Many in the legal world still believed in the old virtues even after Bush v. Gore, the 5-to-4 ruling that effectively decided the 2000 presidential election on what appeared to many Americans to be partisan grounds. But now, the court’s hard-right supermajority, installed in recent years through a combination of hypocrisy and sheer partisan muscle, has eviscerated any consensus.

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party.

And that has made it impossible for many professors to teach in the familiar way. 

The mounting concerns of legal scholars are shared on both the political left and right. Michael McConnell is an extremely conservative legal scholar who has criticized the analyses of even the cases that reach his preferred conclusions. He worries that the dishonesty and hypocrisy of these justices is undermining the respect required by the rule of law.

Professor McConnell recalled a recent exchange in one of his classes. “I said something to the effect of, ‘It’s important to assume that the people you disagree with are speaking in good faith.’ And a student raises his hand, and he asks: ‘Why? Why should we assume that people on the other side are acting in good faith?’ This was not a crazy person; this was a perfectly sober-minded, rational student. And I think the question was sincere. And I think that’s kind of shocking. I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed.”

As Maya Angelou told us: When someone shows you who they are, believe them.

Alito’s breathtaking breaches of judicial behavior leave no doubt about who he is. He should be impeached.


  1. Seriously, Professor, what can we, as the citizen/public, do. I am reasonably confident that the 8 other justices will not do anything about Judge Alito. I am stunned and keenly depressed and disappointed.

  2. POTUS can suspend, and or replace the SCOTUS, if He has the will to do it. Also the same thing applies to the COTUS!

    With a legitimate insurgency by social Christian nationalists, a clear and present threat would allow Martial Action by the Executive branch, post haste.

    I just don’t think the will to act is there. This could be the last chance to correct the overly permissive allowance of an obvious threat. Could a, would a, should a, if nothing is done with this opportunity, the other side will!

    Dark indeed!!!!!

  3. You have to look at Alito’s wife who is in a neighborhood where everyone is showing anti-Trump signs. Should she have responded, no since her husband is a Supreme Court judge. It certainly is now interfering with his job, not because he supports Trump as much as he is giving radical left leaders like Jeffries an ability to play political chess. Getting 45 signatures from the leaders is really nothing.
    In regards to the Appeal to Heaven flag Jeffries certainly as a Baptist Sunday School teacher cant have a problem with the meaning behind this flag..
    “To fully comprehend what John Locke meant by an Appeal to Heaven, it’s important to understand the beliefs of the time. There were no international courts, and as a philosopher, Locke theorized that all sovereign nations must have a superior judge to rule over the law of the land. ”
    Somehow liberals can’t stand a beliefvin God like most people had in that day where many were biblically literate.
    What we should be concerned about is tge finacial collapse of the US government on its projected path.
    The last three Presidents have spent $24 trillion

  4. Why are Alito’s pro-insurrection flag flying issues just now being made public and considered an issue to deal with?

    Why are Alito’s and Thomas’ unscrupulous acceptance of high-wealth gifts been ignored till recent months; with both casting blame on their own wives for the issues?

    The answer is that as members of the highest Court in the Land they can continue refusing, with their judicial cohorts, to set a list of Ethics for all of them to follow…the remaining years of their lives. Who has the balls to bring the first impeachment action against a sitting Supreme Court Judge for sedition?

  5. The time has come. I am developing a real dislike of the overuse of the term unprecedented, but this certainly is another appropriate application. There simply has been no other person like trump in his disdain of, and loudly public pronouncements of, a complete lack of any decorum and even any understanding of what the rule of law means in this country. This awful leadership has drawn many into similar activity, as we see in Justice Alito, and Justice Thomas as well. They both lead disgraceful lives in their lifetime SCOTUS appointments, and without a strong code of ethics, term limits, etc., cannot be trusted to follow a non-partisan path to decision-making at the highest level. The only solution prior to resolving the lack of serious rules of conduct is impeachment, and the only way that can happen is for Dems to take back the House while retaining the Senate and POTUS this November. VOTE!

  6. I’ve always had in the back of my mind the idea that no matter what all else failed in the country at least we always had the Supreme Court to straighten things out. Not anymore. It’s like waking up one morning and finding out that the local fire department had been taken over and was being run by arsonists.

  7. We must take Alito at his word. Yesterday Justice Alito took another huge step in gutting the Voting Rights Act by writing the SCOTUS decision in Alexander v. South Carolina State Conference, establishing a PRESUMPTION of good faith that will shield racial gerrymandering for years to come. He literally invented such presumption when legislatures with a history of racial discrimination draw new congressional boundaries.
    The remedies that must be pursued are: opening an impeachment inquiry of Justice Alito (as well as Thomas); demand Alito’s recusal from any cases related to the January 6 insurrection, including Trump’s claim of immunity from prosecution; pressure CJ Roberts to recommend an investigation of Alito by the federal Judicial Conference; expand the SCOTUS by winning the next election and taking control of both houses to dilute the reactionary majority that now sits on the highest court of our land.
    Of course, the first three of these remedies will unlikely occur before this Fall’s election due to a lack of will or courage in either the Congress or CJ Roberts’ chambers. Once again, the power of the ballot box will determine whether this democracy can survive.

  8. As many of us have railed on this blog, two incredibly incompetent Presidents – both named Bush – picked these two seditionists for the court. Then, a truly evil and wretched criminal picked three more. The fundamentally corrupt Republican party approved them all. Connecting these dots is really easy to do, but erasing the lines between those dots will be impossible if, as David Stippler suggests, we don’t kick this collection of miscreants and evil-doers out of our government. If we don’t the insane Alito, Thomas, et. al., will continue to destroy our liberties and allow the enemy within to rule.

    Watch for these right-wing extremists to rule that Trump is immune from crime. If they do, it’s time to pack our bags for foreign lands. Do you know anyone in other countries who can help you get political asylum?

  9. Sam as the author of Dobbs ignored the principle of stare decisis, a long held doctrine of judicial constraint and guidance, while removing a constitutional right of some fifty percent or more of the polity in a decision reeking of arrogance, speaking of which his flagging tells us all we need to know for an investigation into his impeachment. Dictatorship is not the sole prerogative of the executive branch and the Separation of Powers doctrine at least supposedly gives the Supreme Court the power to interpret but not to make law.

  10. Two things. First in the latest Alito twisting of the law, he and his majority justices gave no deference to the fact finding. SCOTUS has a duty to look at the record and give some deference to the trial court. So gerrymandering is ok as long as it is political because political gerrymandering is racially neutral. right.
    Second -Kimberly Stassel writes in the Wall Street Journal that the whole flag issue is just another meritless lib attack. She asked where do the Dems get the idea that flying those flags had anything to do with Alito’s position. I say DuH Kimberly – flags are symbols. Symbols, slogans created to encourage group solidarity can be used for good or evil – creation or destruction. I submit Alito – who used a 13th/14th century quote about quickening in overturning Roe knew exactly what those flags meant.

  11. Looking into what can be done let me first clarify that POTUS can nominate people for the court, but has no authority to remove anyone from either the court or the Congress. The justices have to be removed by impeachment. The Congress has the authority to throw out members of their own bodies or they might be subject to recall from their constituents.

    Everyone is looking to the Senate at the moment to require an ethics standard for the court. There are two questions in that case. First, can you get sixty votes and second, if you get the vote would this court recognize or acknowledge the right of the two co-equal branches of government to impose any rules on them.
    If someone with the standing to do it would make a formal complaint to the Bar in DC and wherever Clarence and Sam are members and they are disbarred that might make it easier to show that they are no longer in “good Behavior.”. At that point, we need a blue trifecta after a tsunami in November.

  12. The U.S. flag code, which is not legally enforceable, specifically says that the flag is not to be inverted “except as a signal of dire distress in instance of extreme danger to life or property.”

    Alito drew additional controversy when an “Appeal to Heaven,” or Pine Tree, flag was flown outside his beach house in New Jersey in July and September of 2023. The flag originated in John Locke’s reference to revolution as “an appeal to heaven”

  13. Chief Justice Roberts ‘assured’ us last year that there is no reason to create written ethical standards (with actual teeth) that the sop members must abide by.

  14. After reading today’s post and comments, I wonder why people are hoping for a significant November Democrat shift in Washington before taking action against the corrupt judges. If they are corrupt now, why wait until after November to take action?

    This is the same scenario as all the others. If Biden or the Democrats won’t take action now, why do you think they’ll take action after a “major victory” in November? Haven’t the Democrats shown you who they were, too?

    Sheila writes, “…the dishonesty and hypocrisy of these justices is undermining the respect required by the rule of law.”

    Ding, ding, ding…both the Democrats and Republicans are threatening the jurists at the International Criminal Court at The Hague for seeking arrest warrants against leaders of Israel for their murderous actions in Gaza against the Palestinians. They’ve been calling the student protesters across our university system “terrorists” for holding the oppressors accountable. Many of the university presidents have banned peaceful protesters from their campus. How’s that for moral leadership?

    Lindsey Graham said the silent part out loud yesterday when he spoke to fellow Senators by saying, “If the ICC follows through with arrest warrants against Israeli leadership, they’ll be coming for us next.” There was a small applause in the crowd.

    The US is complicit in genocide, so why shouldn’t the war crimes court issue arrest warrants for US leaders?

    Here’s the deal in Washington and with our propaganda media, our collective representatives in D.C. don’t care about the US law or international law. They are ‘above the law.’ We’ve been violating international laws regularly without consequences. Our reps have been periodically violating or circumventing US laws without negative repercussions. They passed laws making bribing a public official legal and haven’t dared codified laws against bribery.

    For decades after WW2, we’ve been the top dog in the ‘rules-based order.’ This allows us to do as we please and force other nations to do as we say. They have to follow, but not because they want to follow our exemplary moral leadership but because we threaten others with sanctions and other economic warfare. We overthrow governments that don’t do as we say. Our actions show that we are clearly above the law. Period.

    So, who’s going to stand up in Washington and hold the others accountable for violating ethics guidelines or the law of the land when all of them believe they are above the law? It won’t happen!

  15. Consider the Republican Party, which is inherently disadvantaged by democracy due to its narrow constituency. How do they win at any cost, as is inherent in underregulated capitalism? Eat the elephant a bite at a time. Not enough people will care until the elephant is gone.

    What replaces the elephant? Trump does. Worship the man in the absence of believing in the Union.

  16. Linda – well said!
    Kimberly Stassel writes in the Wall Street Journal that the whole flag issue is just another meritless lib attack. She asked where do the Dems get the idea that flying those flags had anything to do with Alito’s position.
    So if that’s true can we expect to see a Pride flag (rainbow) flying over Alito’s house anytime soon? Ms. Stassel must think we’re all idiots like her!!
    Vernon — I am NOT moving. I am staying to be part of the resistance.

  17. One can file a Judicial Misconduct Claim regarding, go to “menu,” “justices and judgeships,” then to “Judicial conduct and disability,” “FACS,” “judicial misconduct complaint,” and scroll to #4,”How to file complaint,” to the form, and download it.
    This pertains to Judge Aileen Cannon@ the U.S. District Court for the jurisdiction of Florida , case # c23-80101-CR-Cannon… and perhaps there is a place there for Alito. I certainly hope so.
    One can list a statement of facts regarding either, or both(?). In Cannon’s
    case, one prints the form and mails it to The Clerk’s Office for the 11th Circuit court of Appeals, @ 56 Forsyth Set. NW, Atlanta, Ga. 30303
    If there is no such thing for SCOTUS judges, there should be.

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