Press: The Supreme Court — flying upside down

If you believe everything you read or hear in the news, the federal government is out of control, hopelessly divided and incapable of getting anything done. But, once again, the media has it wrong. 

Yes, Republicans and Democrats are perhaps more divided than ever. But even given that intense partisanship, Congress and the White House have scored a remarkable record in the last three years: bipartisan legislation on COVID-19 relief, infrastructure, semi-conductor chips, gun violence, same-sex marriage, veterans’ health and anti-Asian hate crimes. In the last month, the president and Congress worked together to extend help to Ukraine and Israel and force the sale of Tik-Tok.  

The truth is, despite the heated partisan rhetoric, Congress and the White House are functioning just fine. There’s only one branch of government that’s totally out of control. It’s not the executive branch or the legislative branch. It’s the Supreme Court — evidenced again last week by reports of an upside-down American flag hanging outside the home of Justice Samuel Alito. 

As first reported by the New York Times, complete with photographs, for several days in January 2021, shortly before President Biden’s inauguration, Justice Alito’s front yard displayed an upside-down American flag, a symbol of the “Stop the Steal” movement, adopted by those who believed, with Donald Trump, that the 2020 election had been stolen.  

This was an outrageous breach of protocol for two reasons. First, because of the disrespect it shows to our national flag. According to the U.S. Flag Code, the American flag must never be flown upside down, except as a signal of dire distress in instances of extreme danger to life or property. Second, because flying the upside-down flag was a violation of the Supreme Court’s own ethics guidelines, which emphasize the need to remain politically independent. By hoisting that flag, Alito jettisoned any semblance of neutrality and openly sided with the mob that attacked the U.S. Capitol just a few days before. 

When the story broke, Justice Alito admitted to Fox News that he knew the upside-down flag was there but blamed it on his wife, Martha-Ann. Nonsense. Alito knows the legitimacy of the nation’s highest court depends on its members preserving at least the appearance of being above politics. As former White House Counsel Gregory Craig told me: “That flag was a symbol of support for those who, with violence, tried to reverse the outcome of a presidential election. If he disagreed with it, he would have taken it down on Day One. He didn’t.” 

Alito is one of the court’s most conservative members. In speeches, interviews and his written opinions, he’s made no secret of that. But this is much more serious, because the court will soon issue rulings on two key cases regarding the Jan. 6 storming of the Capitol: Whether as former president Trump has total immunity for any official acts; and the scope of the obstruction of justice statute under which Trump is charged. 

One thing for sure. There’s no way Alito, having already shown his bias, should be allowed to rule on those two cases. And, of course, neither should Justice Clarence Thomas, whose wife Ginni was openly involved in efforts to overturn the election. 

Under the best of circumstances, both Alito and Thomas should recuse themselves. If they refuse, Chief Justice John Roberts should publicly call on them to do so. If they still refuse, Congress should move to impeach them both. It’s more important to save the court than to save Donald Trump. 

Bill Press hosts “The Bill Press Pod.” He is the author of “From the Left: A Life in the Crossfire.”