Are There Insurrectionist Sympathizers on the Supreme Court?

Picture two protests involving the American flag.

In one of them, a star NFL quarterback kneels during the singing of the national anthem. The reason? To call attention to the true, real plight of Black Americans whose lives seem not to matter as much as white ones — part of the unfinished business of American democracy. For this, he is booed, vilified, and effectively banned from the NFL. He never works as a quarterback again.

Now picture a second protest. A sitting Supreme Court justice (or perhaps his wife, but with the justice’s obvious consent) flies a flag upside-down in front of his house on January 17, 2021. The reason? To support the lie, disproven hundreds of times, that the 2020 election was stolen,  to protest the peaceful transition of power that was about to take place. For this, the justice and his wife suffer no consequences at all.

This is the country we live in: a country in which Justice Samuel Alito — a man with massive power over all our lives, who wrote the court opinion overturning Roe v. Wade — can engage in overtly anti-democratic activity, and the only response is a few angry opinion pieces in newspapers and some gentle chiding from lawmakers. There are hardly any binding rules governing Supreme Court justices, and they serve for life, subject to no review and no accountability, save an impeachment process so difficult and untested that it has only been done once in American history — in 1804.

Colin Kaepernick was shunned; but Justice Samuel Alito is one of the most powerful men in America.

After this article was published, The New York Times revealed that the Alito family flew another flag, this one associated with Christian Nationalism, at their beach house. Calls are now increasing for his recusal from Jan. 6 cases.

Alito is not alone in cozying up to those who spread demonstrably false lies to subvert democracy. He is joined on the court by Clarence Thomas, whose wife Ginni was, in the weeks after the 2020 election, emailing and texting with Trump associates pressuring Vice President Mike Pence to reject the election results, demanding that the state of Arizona select a new slate of electors to support Trump, and calling the election a “heist.” She even testified before the House Jan. 6 committee, under threat of subpoena.

Let’s be clear that this is not about ideology. The Supreme Court is dominated by conservatives, mostly drawn from Leonard Leo’s dark-money funded, far-right network which promoted and advocated for Justices Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch, Donald Trump’s three appointees to the court, as well as Justice Alito and John Roberts. But while the Trump justices frequently vote in a conservative way (all three voted to overturn Roe, for example), they have no record of being anti-democracy conspiracy theorists — or married to them. 

That’s an important distinction, especially as we consider the real possibility that Donald Trump may become president again. If elected, he has promised to engage in a wide variety of authoritarian, anti-democratic actions: rounding up immigrants (mostly those whose immigration status is not yet determined — i.e., they may be here legally) for mass deportation; using the Justice Department to go after political enemies; sending the National Guard into cities; and retaliating against media outlets and other perceived enemies.

For a traditional conservative, such actions run afoul of deeply held beliefs in limited government. But for a far-right MAGA populist, they are necessary to ‘save America,’ fight the globalist elites, and so on. If Donald Trump does become president again, will Justices Alito and Thomas do anything to curb his authoritarian plans? 

That hardly seems likely. As horrifying as it may seem to a progressive, the fate of civil rights in America now rests mostly on those three Trump appointees, Gorsuch, Barrett, and Kavanaugh. There are three liberals on the court, plus Chief Justice Roberts, who is a quasi-moderate (on some issues, anyway), and then two authoritarian sympathizers on the other side. That makes the conservatives the swing votes.

Even if Trump doesn’t win this November, the authoritarian leanings of Alito and Thomas are already impacting important Supreme Court cases about the extent of Trump’s power. Right now, the court is considering whether Trump is immune from being prosecuted for criminal acts he may have committed while in office (including by inciting the Jan. 6 insurrection at the U.S. Capitol), and if the Jan. 6 cases ever progress, they will likely be asked to rule on them too. Not to mention the bevy of challenges to the 2024 election that will be filed if Trump does lose.

If this were any other court in the country, Justices Alito and Thomas would be required to recuse themselves from all these cases. They are far too close to the subject matter, with their own wives (at least) being activists on one side of these disputes. Indeed, on other courts, any display of political ideology — even a bumper sticker — is against the rules. But Alito’s house can fly an American flag upside down, and can give speeches to the Federalist Society blaming liberals for the demise of free speech and warning hat religious freedom and gun ownership are becoming “second-class rights,” despite both being greatly expanded in recent years… and nothing happens. No sanctions, no recusals… nothing.

The court has long since lost its 20th century role as guardian of civil liberties — indeed, that period in the court’s history is now regularly derided as an aberration of “judicial activism” by conservatives. Now it is in danger of losing its stature as part of our democratic system.

Finally, Justices Alito and Thomas have wedded their anti-democratic activism with old fashioned corruption — another recurring feature of Trump’s MAGA movement, which is filled with grifters, self-dealers, and con artists, beginning with Trump himself. The shamelessness, as recently noted by Jesse Wegman in The New York Times, is staggering. 

In 2008, as exposed by ProPublica, Alito accepted a private jet flight to Alaska from billionaire Paul Singer, and failed to disclose the gift on his annual financial disclosures. Singer’s hedge fund subsequently was involved in at least 10 cases before the Supreme Court, and Alito never recused himself despite the close personal relationship. In one case, the court backed Singer’s yearslong debt fight with Argentina, helping Singer’s hedge fund ultimately secure $2.4 billion.

Oh, and that Alaska trip? It was organized by Leonard Leo.

For the record, Alito wrote in a preposterous Wall Street Journal op-ed that the disclosure rules didn’t cover “accommodations and transportation for social events” and he somehow didn’t know that the hedge fund was in any way related to Singer.

Justice Thomas has been even more egregiously corrupt, accepting two decades’ worth of luxury trips from conservative activist Harlan Crow, including cruises on the billionaire’s yacht, flights in his private jet, and stays at his private resort. The ProPublica investigation exposing this largesse estimated the cost of just one of those trips at over $500,000. None of them were disclosed by Thomas.

Crow, meanwhile, has donated hundreds of thousands of dollars to a political organization where Ginni Thomas worked; his donations literally paid Ginni Thomas’s salary. Crow and his wife also serve on the boards of American Enterprise Institute, the Hoover Institution, and other conservative organizations that regularly write “friend of the court” briefs and take policy positions on issues the court is considering. Yet despite public outcry at all of this, Justice Thomas has faced no consequences for his misdeeds.

Will any of this matter? It’s not yet clear. Public opinion of the Supreme Court is at an all-time low. And for good reason: People are aware of the corruption, the duplicity, and above all, the ways in which the court’s conservative majority acts more like a partisan political actor than an impartial judicial one. 

Yet it’s not clear if this discontent has yet impacted the 2024 election. Progressive voters are rightly dissatisfied with many of President Biden’s actions, but if the result of that dissatisfaction is the election of Donald Trump, the consequences will be severe: massive assaults on civil liberties, democratic norms, and policies that Americans overwhelmingly support (Trump says he is open to states banning birth control, for example), as well as, of course, the population of the federal bench with more judges like Alito and Thomas. And when those actions are challenged, we may find that the United States Supreme Court has gone from protecting civil liberties to helping an autocrat take them away.

Editor’s note: This story has been updated, based on new reporting, to note that the Alito family flew a flag associated with Christian nationalism at their beach house.