Alito's flag: Active, arrogant disregard of the Supreme Court's legitimacy

Dan Rodricks

May 19

In my columns over the years I've argued that judges should not have to run for election, as they do in Maryland. I've also argued that the Baltimore State's Attorney and the State's Attorneys for each Maryland county should be appointed, not elected. The state should follow something like the federal system, with the executive branch (the governor or attorney general) nominating chief prosecutors for each Maryland jurisdiction to the state Senate for confirmation or rejection. That process still involves some politics but it is not as blatantly political as the process we have now — prosecutors running for election or re-election, seeking campaign donations (often from members of the bar) and endorsements. Same with state judges, who are appointed and then face election. That whole process taints — and potentially delegitimizes — the judiciary and the criminal justice system.

The Supreme Court has a big problem with this, with at least two justices — Clarence Thomas and Samuel Alito — living in households not only publicly aligned with Donald Trump but apparently supportive of the Jan. 6 insurrection. The court already had a problem with legitimacy, overturning Roe v. Wade, despite claims by conservative, Trump-nominated justices that it was settled law.

With the Times story on the upside-down "Stop The Steal" flag at Alito's residence, we've reached a new level of active, arrogant disregard for the public's perception of the court. Alito blames his wife for the display and apparently told Fox that it was done in response to a nasty neighbor. From Adam Serwer's piece in The Atlantic: "A Fox host later reported that 'the neighbor put up a sign personally addressing Mrs. Alito and blaming her for the Jan 6th attacks.' Even accepting that this is true and that Alito's neighbor was behaving rudely, signaling support for an insurrection is an odd way to respond to someone accusing you of supporting an insurrection."

And, meanwhile, Alito has taken no steps to disavow the insurrectionist claims. He and Thomas have clear conflicts in deciding any matter with regard to Trump's indictments. Chief Justice Roberts should ask them to recuse themselves or else risk a legacy, if not already established, of having presided over the court with arrogant disregard for its legitimacy.