I suspect that given the insult to judicial ethics personified by U.S. Supreme Court Clarence Thomas, some who follow these pages have been surprised that I have never expounded on Justice Thomas’ various peccadillos and the untoward partisan machinations of Justice Thomas’ wife, Ginni. Frankly, I felt that dealing with the Thomases would be an unfair imposition on your time and eyesight; they are who they are, and you know it. That said, the undisputed reports that U.S. Supreme Court Justice Samuel Alito’s wife, Martha-Ann Alito, hung an upside-down flag – a symbol of the Trump Cult’s entirely baseless “Stop the Steal” movement – at the Alitos’ residence just days after the January 6, 2021, insurrection, brings Justices Thomas’ and Alito’s trampling of judicial propriety back to the fore.
As all who care are aware, Justice Alito, following the publication of reports of the flag waving incident, in May rejected Congressional Democrats’ demands that he recuse himself from a case now pending before the Supreme Court in which the Court will decide whether former President Donald Trump enjoys immunity from prosecution for any or all of his activities in the attempt to overturn the result of the 2020 presidential election. In his response to Congressional Democrats, Mr. Alito declared that he and his wife jointly own their home, stated that her actions arose from a heated neighborhood dispute, and asserted that Ms. Alito was flying the flag against his wishes – indeed, that “[A]s soon as [he] saw [the flag, he] asked [his] wife to take it down, but for several days, she refused.” The Justice actually cited as part of his rationale for not recusing – this is enough to make one blink — the Court’s Code of Conduct section which provides, “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” A link to Mr. Alito’s response to U.S. Democratic Senators is set forth herein (his response to House Democrats closely mirrored his response to the Senators).
Clearly, the Alitos maintain dual citizenship; they are both Americans and citizens of the Land of Oz, where one does not look behind the curtain.
To state the obvious: Justice Alito’s response managed to make him look both caddish – blame the wife – and wussy – that it took him several days to persuade her to take the flag down. [I know; every married person reading these pages can recall arguments with his/her spouse that continued unresolved for several days. That said, Mr. Alito is a U.S. Supreme Court Justice; it is dumbfounding that it took him that long to get Ms. Alito to see that her actions (assuming that they were indeed her actions) were making him look both traitorous and incompetent (since of all people, a U.S. Supreme Court Justice had to understand that inasmuch as Mr. Trump had lost 60 or more lawsuits challenging the legitimacy of vote counts favoring President Joe Biden in pivotal Electoral College states, there was no “Steal”; Mr. Biden had won, and Mr. Trump had lost)].
Except for the very rare couple that maintain a loving relationship despite the fact that it is clear that one of the two is markedly liberal and the other is decidedly conservative, I reject the notion that the political activity of a judge’s spouse should not be imputed to the judge. Who did or said what in the neighborhood dustup that allegedly so exercised Ms. Alito is irrelevant (although I understand that the neighbor is claiming that the disagreement that Mr. Alito described in his response didn’t occur in January, 2021 – i.e., at or about the time Ms. Alito flew the flag — but in February, which, if true, completely undercuts any suggestion that Ms. Alito was simply overreacting to previous unpleasantness). In the federal system – where judges are appointed, rather than elected — one should not be a judge if one’s spouse cannot refrain from political activity; one whose spouse is a judge should refrain from political activity. The Alitos’ behavior is an execrable betrayal of what those of us who embrace the law consider the secular calling closest to the sacred.
But don’t take my word for it.
“Supreme Court Justice John Harlan, a conservative Eisenhower appointee …. was the quintessential patrician, generally unflappable and unfailingly courteous. … Harlan viewed the law as almost a religious calling. … Harlan had been the ‘conservative conscience’ of the Warren Court, a frequent dissenter. He advocated restraint rather than activism. … Always concerned that the slightest gesture or contact with the executive [branch] might be thought to imply endorsement, Harlan declined to vote in presidential elections (or any others) and never applauded at the President’s State of the Union address. In 1967, Harlan refused to continue a tradition in which the Justices in top hats and tails annually paid their respects to the President at the White House at the opening of the Court’s term. … Harlan persuaded the others to abandon the practice of calling on the President, lest [President Lyndon] Johnson try to use them to legitimize his [Vietnam] war effort ….”
- Bob Woodward and Scott Armstrong; The Brethren
“It is difficult to speak about the judges, for it behooves us all to treat with the utmost respect the high office of judge; and our judges as a whole are brave and upright men. But there is a need that those that go wrong should not be allowed to feel that there is no condemnation for their wrongdoing. … [S]uch a man performs an even worse service to the body politic than the Legislator or the Executive who goes wrong. In no way can respect for the courts be so quickly undermined as by teaching the public through the action of a judge himself that there is reason for the loss of such respect.”
- Theodore Roosevelt; The Autobiography of Theodore Roosevelt
“There is a vague popular belief that lawyers are necessarily dishonest. … Let no young man, choosing the law for a calling, for a moment yield to this popular belief. Resolve to be honest at all events; and if, in your own judgment, you cannot be an honest lawyer … [c]hoose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”
- Abraham Lincoln; Notes on the Practice of Law
McCoy's Noise 