Supreme Court Justice Samuel Alito has been lying in public for a long time. His attempt to blame his wife for flying an upside down American flag, a symbol of MAGA defiance, at his Virginia home shortly after the January 6 insurrection is only the latest in a series of high-profile prevarications dating back to his 2006 Senate confirmation hearing.
Nominated to the Supreme Court by George W. Bush to replace the retiring Sandra Day O’Connor, Alito’s confirmation was all but guaranteed as Republicans held a 55-seat majority in the upper chamber. Yet despite taking an oath to tell “the truth, the whole truth, and nothing but the truth” on day one of the four-day proceeding, Alito sought to portray himself as a judicial moderate, misrepresenting his positions on a host of critical issues.
First and foremost, Alito lied about his views on abortion and Roe v. Wade (1973), which he called an “an important precedent of the Supreme Court” that had “been on the books for a long time” and had been “reaffirmed” by the court, strengthening its value as settled law. Sixteen years later, with the court firmly in the hands of a hard-right majority, he showed his true colors, authoring the Dobbs v. Jackson Women’s Health Organization opinion that overturned Roe, proclaiming that Roe “was egregiously wrong from the start,” and that its reasoning was “exceptionally weak” and caused “dangerous consequences” for the country.
Short of expanding the court, which is a long-term political project, there is at least one thing supporters of impartial justice can do. We can, and must, expose Alito’s mendacity and corruption at every opportunity.
Alito similarly shaded the truth at his confirmation hearing about his support for a broad-based interpretation of presidential immunity and the “unitary executive” theory that advocates for an all-powerful presidency—questions that loom large before the Supreme Court in the election-subversion case brought by Justice Department Special Counsel Jack Smith against Donald Trump that the court will decide by the end of its current term. Alito was also suspiciously evasive about his membership in a now-defunct Princeton University alumni group that opposed the admission of women and tried to limit the enrollment of minority students.
None of Alito’s confirmation-hearing posturing was convincing or surprising. Long before the hearing, Alito had earned a well-deserved reputation as an aggressively hardcore Republican partisan, serving as a deputy assistant attorney general assigned to the Office of Legal Counsel from 1985-87 during Ronald Reagan’s second term as president; working as the U.S. attorney for the District of New Jersey from 1987 to 1990; and sitting as a federal appellate judge on D.C. Circuit Court of Appeals from 1990 to 2006.
As a federal judge, he was given the nickname “Strip-Search Sammy” for a dissenting opinion he penned in 2004 in a drug-raid appeal from Pennsylvania, in which he approved of the strip search of a 10-year-old girl who was not a suspect in the case. Although he claimed at his confirmation hearing that he “wasn’t happy” about what had happened to the child, he insisted his dissent was based solely on a technical application of the Fourth Amendment.
On the Supreme Court, Alito has operated very much in keeping with his strip-search moniker, ruling in favor of defendants in only 20% of the criminal cases that have come before him. The court’s next most pro-prosecution justice, Clarence Thomas, has voted in favor of defendants at a 25% rate.
Like Thomas, Alito has also come under fire for alleged ethics violations while on the Supreme Court. As reported by ProPublica last year, he took a luxury fishing trip to Alaska in 2008, flying for free aboard a private jet owned by Republican megadonor Paul Singer and staying, all-expenses paid, at an opulent rustic lodge owned by the businessman. Alito not only failed to disclose the trip on his annual financial disclosure forms, but he also failed to recuse himself from participating in a case involving Singer’s hedge fund that the court decided in the fund’s favor in 2014.
Throwing his wife under the bus in the flag controversy represents a more cowardly ethical low. Martha Ann Alito, a former law librarian, sat dutifully behind her husband throughout his confirmation hearing. At one point, as her spouse came under increasingly harsh questioning by Democratic members of the Senate Judiciary Committee, she burst into tears and briefly left the room. The incident, according to investigative reporter Michael Isikoff, changed the entire tenor of the hearing. “It was game, set, match,” Steve Schmidt, the veteran Republican operative turned never-Trumper who worked on Alito’s confirmation, told Isikoff, for an article posted last week byThe Wrap.
When The New York Times published the photo of the upside-down American flag that had been raised outside his Virginia home in the days following the January 6 insurrection, Justice Alito had a choice. He could have manned up and admitted that he knew full well that the inverted flag, a traditional signal of naval distress, had been appropriated as a symbol of the “stop-the-steal” movement and had been carried by rioters who stormed the Capitol. Or he could have opted to pin responsibility solely on his wife. In an email to the Times, he chose the latter, writing:
I had no involvement whatsoever in the flying of the flag. It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.
As it turns out, the upside-down flag isn’t the only stop-the-steal banner Alito and his wife have brandished since the insurrection. Last summer, according to another New York Times report, the couple flew an “Appeal to Heaven” flag at their New Jersey vacation home. Depicting a green pine tree topped by the motto “Appeal to Heaven,” the flag dates to the Revolutionary War, but has been repurposed by Christian nationalists and like the inverted Stars-and-Stripes, was seen in the hands of insurrectionists on January 6.
Alito has offered no further comment on the flag scandals, and it’s easy to understand why. He doesn’t have to. The framers of the Constitution endowed Supreme Court justices with lifetime appointments, and barring impeachment, they are beyond legal accountability.
Short of expanding the court, which is a long-term political project, there is at least one thing supporters of impartial justice can do. We can, and must, expose Alito’s mendacity and corruption at every opportunity. As Isikoff noted for The Wrap, Alito has replaced Thomas as the most polarizing justice on the Supreme Court. “Nobody likes him,” Schmidt told Isikoff. “He’s sullen, aggrieved, prickly, and angry.” It’s imperative to let Alito know that we are angry, too.
