This week the US Supreme Court issued a ruling that essentially gives the green light to state Republicans’ use of racial gerrymandering to hold onto political power, despite the Constitution’s clear prohibition of using race to draw congressional maps.
That alone should alarm anyone who values our American democracy and the free and fair elections that sustain it. But an even more ominous pall was cast over the opinion because of who authored it on behalf of the court’s conservative supermajority: Justice Samuel Alito.
The opinion comes on the heels of two reports of flags closely associated with the “Stop the Steal” movement, fueled by Donald Trump’s election fraud lies, flown on Alito’s properties. An upside-down American flag flew outside the justice’s Virginia home in January 2021, days after insurrectionists stormed the US Capitol building. Once used as a distress signal, the symbol has become a pro-MAGA symbol for those falsely claiming the 2020 presidential election was stolen from Trump.
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Similarly, some Jan. 6 rioters waved the “Appeal to Heaven” flag — the same one photographed last summer outside Alito’s New Jersey shore vacation home. That American Revolution-era flag carries the phrase coined by John Locke, who wrote about the need to overthrow unjust rule by any means, including violence. It too has been coopted by a segment of Christian conservative Trump backers.
After a report on the first flag ran in The New York Times, Alito responded to a different media outlet: Fox News. He explained that the flag was raised by his wife, Martha-Ann Alito, in response to a neighbor who put up an anti-Trump sign and hurled vulgar language at her when she objected.
As of the deadline for this column, Alito had yet to blame his wife or anyone else for the second MAGA-affiliated banner at their shore house.
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But back to the racial gerrymandering decision. The case, Alexander v. South Carolina State Conference of the NAACP, effectively gives cover to Republicans seeking to boot Black voters out of GOP-leaning districts to preserve Republicans’ political power, so long as such gerrymandering is driven by partisan goals as opposed to racial ones. Of course, that is a gaslight: Black voters are historically reliably Democratic. This is exactly what the 15th Amendment was meant to outlaw.
But it was fine with Alito, who wrote in the opinion blessing such efforts in South Carolina that “the high priority that the legislature gave to its partisan goal provides an entirely reasonable explanation.”
Institutions are only as strong as the public’s trust in them. And the public has learned a lot about Alito in recent years — from his jet-setting to luxury vacation destinations with deep-pocketed conservative political influencers who had cases before the court, to his close ties to antiabortion advocates that long predate the decision he authored overturning Roe v. Wade, to the flag fiascos. Given that context, how can we trust that the gerrymandering decision wasn’t biased by his obvious favor of conservative causes?
The answer is, we can’t. And this is the problem with a US Supreme Court that fails to hold itself to the same ethics rules that bind other federal judges and public servants.
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When I studied law, took the Massachusetts bar exam, and was sworn in as an attorney and officer of the court decades ago, I never thought I would question the motives of those on our nation’s highest court, let alone see the court as a potential threat to our democracy. I knew I’d disagree with some rulings, but I never thought I’d question the justices’ adherence to our shared oath to uphold the law and support the Constitution.
Now I do.
Those mostly to blame for the loss of faith many Americans are experiencing in the court’s impartiality are the justices themselves. Yes, politics have been injected into the court for decades through the politicization of the confirmation process by our elected leaders.
But Alito and other justices have always possessed the power to prevent that loss of faith I and other Americans have in their ability to rule impartially. Alito could have adhered to the letter of ethics rules by disclosing his connections with conservative advocates with business before the court, recusing himself from those cases, and changing his behavior. But he remains defiant.
Conservatives say that other justices, including those on the liberal side of the bench, have expressed political views, such as the late Justice Ruth Bader Ginsburg’s comments that Trump was “a faker.”
The difference: Ginsburg owned up to it.
“I did something I should not have done,” Ginsburg later said of the comments. “Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”
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Alito has shown no such contrition. Even if he were unaware of the current MAGA-movement symbolism of the flags — which I doubt — if he cared about the court’s legitimacy, he would have said that. Instead, his defiance continues and he behaves, like the flag outside his summer home suggests, as someone who is bound by no oath other than to himself and heaven.
He’s showing us who he is. We should believe him.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com. Follow her @KimberlyEAtkins.
