The previous defense was narrowly tailored to facts that are now moot.
The most entertaining aspect of a Republican Supreme Court ethics scandal is when the justices construct an elaborate defense tailored to fit the known facts of their ally’s misconduct, only for new facts to quickly arise that render their defense moot. It happened repeatedly in the Clarence Thomas financial scandals, and now it’s happening to Samuel Alito.
The first Alito story found that the justice had flown an upside-down American flag, a symbol used by stop-the-stealers, in January 2021. It was a scandal because judges are not supposed to engage in political displays and because it associated Alito with an especially nutty faction of right-wing politics (and one that calls into question his ability to fairly adjudicate cases related to Trump’s coup attempt).
Alito and his allies came back with several defenses. They insisted the flag had been flown by Alito’s wife in response to the provocations of a rude neighbor. This defense did not explain why Alito was unaware of a flag flying at his own house, nor why his wife chose to respond to a neighborhood quarrel by endorsing Trump’s election lies. And they insisted she briefly flew the flag because “it was a very heated time in January 2021.”
A series of conservative writers rushed to Alito’s defense by insisting nobody knew the upside-down flag signified support for Trump’s election lies.
Now, the New York Times reports that Alito flew another flag associated with Trump’s insurrection, the “Appeal to Heaven” flag, which was carried by insurrectionists on January 6. The flag was confirmed to have flown over Alito’s beach house in July and September 2023.
Note how the old Alito defenses are totally useless in the face of this new case. It can’t be chalked up to a dispute with a neighbor, unless the same neighbor happens to own property near Alito in two different states. The wife excuse is also threadbare. (Indeed, Alito, who blamed his wife in a response to the first Times story, has no comment in response to the second one.) And the excuse that it was “a heated time in January 2021” obviously does not explain why the Alito home continued to display insurrectionist flags two and a half years later.
Now maybe they will try to say that they also didn’t realize what the Appeal to Heaven flag signifies and that the Alitos coincidentally flew two different insurrectionist flags by mistake. But the meaning of this flag was well known on the far right; here is an article about it from 2021. You could invent a barely plausible story about how a non-insurrectionist would have a regular American flag on hand and fly it upside down in a fit of pique. It’s pretty hard to explain why they would also have an obscure flag used by Trump coup enthusiasts.
However, we can be sure Alito’s defenders will come up with something!
