Justice Alito's Upside-Down Flag

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning everyone, and stay safe if you're in that weather out there. I don't know about where you are, but where I am, it is raining hard and almost dark as night. Be careful if you're out in this, especially if you're in a car. Good morning. We are in our spring membership drive. We're not going to dwell on it today, but I'm going to repeat what Michael Hill and Tiffany Hansen were just saying for just a second, trying to reach our goal of 10,000 donations by the end of the drive, which means by the end of today. Thank you for making yours if you have.

Now we are now officially in Supreme Court decision season. Today is a decision day on their calendar. It could mean something big is about to drop momentarily, like the presidential immunity case, another January 6th case that could apply to hundreds of people convicted of obstruction, the Mifepristone case, or something much more minor. They never say what decision on what day, but it's usually around ten o'clock, and we're ready just in case.

Meanwhile, did you see yet that The New York Times has discovered a second January 6th-linked flag being flown at a second home of Justice Samuel Alito? The Times says it has three photographs and the descriptions of half a dozen neighbors that the Alito house was flying something I never heard of before called the Pine Tree flag or Appeal to Heaven flag outside his New Jersey beach house down on LBI, Long Beach Island at the Jersey Shore. The Time says the Appeal to Heaven flag was a symbol carried by some people on January 6th and is associated with a push for a more Christian-minded government. Of course, a certain type of Christian-minded government. As The Times puts it, the long obscure flag that dates from the Revolutionary War is now a symbol of support for Donald Trump and for what The Times calls a religious strand of the Stop the Steal campaign, and for a push to remake American government in Christian terms. Again, I'll add, in certain kinds of Christian terms.

We already knew about the upside-down American flag outside Alito's Virginia home, his other home, just after January 6th, even as the Supreme Court was still considering a last-ditch pro-Trump appeal over the election. The upside-down flag was another one of the symbols of the rebellion's false claim that the election was stolen. Alito has said the one in Virginia, you've heard this, was hung by his wife in a dispute with a neighbor. He's had no comment so far that I've seen reported on the Appeal to Heaven flag.

Let's talk about what all this might mean for Alito and for American law and democracy with Emily Bazelon, who reports on the law and how it affects people for The New York Times. She also teaches at the Yale Law School, is co-host of the Slate Political Gabfest podcast, and is the author of two books, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, and Sticks and Stones: Defeating the Culture of Bullying, that's a good thing to do, and Rediscovering the Power of Character and Empathy.

Emily, always good to have you with the power of your character and empathy. Welcome back to WNYC.

Emily Bazelon: Thank you so much, Brian.

Brian Lehrer: Did you know about the Appeal to Heaven flag or what it represents before your Times colleagues broke this story?

Emily Bazelon: I think I had a vague sense of it, yes, but I didn't really understand what it was. Obviously, it's important, as you did, to put this in the context of the upside-down flag at Alito's house. You just have this identifying with symbols of a kind of extreme right-wing view, and in the case of the Stop the Steal symbolism, with a matter that in a couple of ways really is before the Supreme Court in the form of cases that are about January 6th.

Brian Lehrer: Right. They reported that Speaker of the House Mike Johnson, known to be a Christian conservative politician, has also flown one as recently as, I think they said shortly before he became Speaker. Is it different for a politician to do that than a Supreme Court Justice?

Emily Bazelon: It is absolutely different. I mean, one might question Johnson's judgment in terms of whether these are an extreme set of beliefs, but he's a politician. He's supposed to be expressing his political point of view. Whereas when you're a Justice, the appearance of impartiality is absolutely bedrock. The idea that you would identify with such a clearly politicized stance, when there were cases pending that could have come to you and now looking back, you are in this position where you have voted in and are going to presumably be part of deciding these important cases that came out of January 6th, you're just playing a different role in the democracy. The standards of the appearance of neutrality and impartiality, that's your job.

Brian Lehrer: Now, Alito said his wife put the upside-down flag on the flagpole at the Virginia house briefly after January 6th over a dispute with a neighbor. Is it clear to you how briefly or the specifics of the dispute?

Emily Bazelon: Well, I think that's actually really important. It wasn't that brief. It was over several days. The idea that, okay, my wife did this and I'm separated from it, seems much harder to maintain when obviously you came home, you saw the flag, you didn't do anything about it. It remained there. In terms of the specifics of the dispute, it sounds like her neighbors had a sign that had a curse word on it about Trump. She took offense because she said that kids would be walking by on their way to school or to catch the bus. Then things escalated from there. Without completely defending the neighbor's behavior, one does wonder why her next move was to hang the Stop the Steal flag as a way of retorting to them. Why make that particular choice?

Brian Lehrer: Yes. As an aside, I guess it's blame-your-wife month for scandalized government officials. Because isn't that New Jersey Senator Bob Menendez's defense in part in how he got all his riches associated with the government of Egypt, that he's on trial for, that he never disclosed?

Emily Bazelon: Yes, absolutely. This also connects up with the questions about Justice Clarence Thomas' impartiality given the activities of his wife, Ginni Thomas, also related to January 6th. It's important, obviously, for spouses to be able to have their own views and their own professional actions, but these are-- When you live in a house with someone, if they fly a flag or if they put up a political sign, that is also going to reflect onto you. Nobody knows that it was that person rather than you or can really even prove that. I think in that sense, it is legitimate to take account these family relationships in this way.

Brian Lehrer: We have the Menendez case, and the Alito Long Beach Island house. Do Alito and Menendez hang out at the Jersey Shore? I guess you wouldn't know the answer to that one.

Emily Bazelon: I don't know the answer, but one doubts it.

[laughter]

Brian Lehrer: Good point. Oh, New Jersey, how are you feeling about this. Still, no explanation from Alito that you've seen about the Appeal to Heaven flag seen in July and September last summer at his Long Beach Island, Jersey Shore house, according to The Times article?

Emily Bazelon: No, he hasn't responded to that as far as I know. It will be interesting to see if he tries to just ignore this whole thing. Often, I think the justices, even if they're not above politics, they pretend that they don't have to respond to criticism. We've seen a lot of that in the last couple of years of just like no statement at all from them personally or from the Court about these kinds of reporting.

Brian Lehrer: Well, if he said his wife did it in the first case, maybe now he'll say the butler did it. We'll have to wait and see. People are complaining, of course, that there's no code of ethics for Supreme Court justices that would cause him to recuse himself. This is, of course, where the rubber meets the road. This is where it matters for American law and American democracy. No code of ethics that would cause him to recuse himself from January 6th or religious takeover kinds of cases. Is there anything like a code of ethics?

Emily Bazelon: There is a judicial code of ethics, but it is not binding on Supreme Court justices. What they always say about this is that it would be impossible to enforce. They are the highest authority, so how could you have rules that would be enforceable if no one can be above them? There are various suggestions about how one could fix this. You could have a group of retired emeritus judges who play that role simply for ethical reasons, for example. To me, this idea that the Supreme Court justices are somehow above ethics or above rules is really tedious. There's been evidence that Chief Justice Roberts has been trying to address this in the last year or so, but so far there has been nothing that has actually happened that would change that calculus for Supreme Court Justices.

What that means is that when Justice Alito decides whether to recuse himself for a January 6th case or not, or when Justice Thomas makes that decision, it's up to that person individually and there's no way, other than just appealing to their conscience, to make sure that they make the right decision.

Brian Lehrer: I see the Court, despite having no formal code of ethics, and I hear what you're saying about who would enforce it because they're the highest authority in the country, but they've been developing a code of ethics according to The Times article that reports on these flags. Can you describe what might be in that? Are you familiar with it at all?

Emily Bazelon: Well, we don't really know what's in it. [chuckles]

Brian Lehrer: Oh, they're doing that in secret?

Emily Bazelon: Yes, it just hasn't been something that they've released that it's clear exactly what the specifics are. The issues are these questions of enforceability. What would the content be? Is it the same as the federal judicial code of ethics that binds the other judges? Are there particular issues with the Supreme Court? For example, if a Supreme Court Justice recuses him or herself, there's no substitute for that person. We don't sub in judges from the lower courts. Should the system change so that actually another appellate judge could come in to make sure there was a full majority of nine justices? Would you do that in every case or only in particular cases? Should the whole Court have some way to rule on each other's decisions? That seems like an uncomfortable position for colleagues to be judging each other. Anyway, those are the kinds of issues that are afloat in thinking about this potential code.

Brian Lehrer: Are these kinds of symbolic displays related to cases the Court is hearing as unusual in the history of the Court as a lot of our listeners might be imagining right now? Are there any other examples from the past of this sort of thing or a backlash to them that you're familiar with?

Emily Bazelon: Well, in terms of expression of political views, one example that's come up is a couple of remarks that Justice Ruth Bader Ginsburg made in 2016. This is before Trump's election. She said something to a reporter that was like, I can't believe this guy could really be elected president, and then she called him a faker. At the time, I think it just seemed impossible to her that he might win. Nonetheless, he was a major Party candidate. It was not a neutral, appropriate thing for her to say. She apologized. Which I think is a really important distinction between that example and Justice Alito.

There's no question that if Justice Ginsburg had lived and remained on the Court and challenges had come before her that had to do with President Trump directly, there would've been a huge outcry from him and his allies for her to recuse herself based on her remarks. When you look now at how little outcry- not zero, but little outcry there has been on the Republican side and the denial that a recusal or now removing himself from these cases would be the right thing to do in this context, that is quite a shift.

Brian Lehrer: Meanwhile, we've been watching the Supreme Court feed, and it looks like neither the presidential immunity case, nor the other January 6th-related case will be decided today or they won't announce it today at very least. I wonder if you, before you go, would just talk about the other one. Because I'm sure our listeners have a basic sense of presidential immunity and what the claim is because remember, the actions that Trump was taking regarding the Stop the Steal movement were while he was president. Is he immune because he was president? That's that case, but the other one involves a much lower level defendant and, by implication, hundreds of people who are convicted of January 6th-related crimes. Can you give us that one in brief so people are ready for it?

Emily Bazelon: Yes, sure. Just to flesh that out a little bit, this one also involves the pending prosecution of former President Trump because it's one of the charges that Jack Smith, the prosecutor, has brought against Trump. This is a charge about obstructing an official proceeding; in this case, obstructing Congress from doing its work. Of course, the idea in the January 6th cases was that by preventing Congress from finalizing the vote, from accepting the results, that was obstructing a proceeding. That, that was a central goal of the January 6th protests and then the invasion of the Capitol and the violence.

The question is whether that charge is the right fit for this behavior. It's from a statute that came out of the Sarbanes-Oxley moment, and it was at the time about financial fraud. There is language in the statute about documents that it's supposed to be obstruction of prosecuting in some way that involves documents, maybe you're falsifying them or you're not supplying them. Now in this January 6th context, which of course is far from Sarbanes-Oxley and financial fraud, the question is whether that clause is limited because there's another part of the statute that talks about other means.

The justices were wrestling with this small close reading textual question about whether other means meant beyond documents or was in some ways tied to documents. Then there was some also questions at oral argument from Justice Barrett, for example, suggesting that, well, even if it does involve documents if you're limited, maybe the fact that there were these election certification certificates that were before Congress could count as some relationship to documents.

Anyway, we will see whether this particular obstruction charge, the Supreme Court allows it to be used in these prosecutions of lots of smaller defendants, as you were talking about, but then also in the case against Trump himself.

Brian Lehrer: By the way, a listener just texted, "Alito and Menendez do hang out together at the Jersey Shore, but they say it was their wives' idea." Thank you, Rodney Dangerfield, listening from somewhere in New Jersey.

We leave it there with Emily Bazelon, who reports on the law and how it affects people for The New York Times. She also teaches at the Yale Law School, is co-host of the Slate Political Gabfest podcast, and is the author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, and Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy.

Emily, thank you as always.

Emily Bazelon: Thanks so much for having me.

 

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