Scott Gurvey's Public Offerings

Last week The New York Times published a photograph it had acquired that showed an upside-down American flag flying on the pole at the home of Supreme Court Justice Samuel Alito. This incident occurred in January 2021, just days after former President Donald Trump’s supporters stormed the U.S. Capitol. The flag is associated with Trump’s false claims of election fraud.

Alito says he had no involvement whatsoever in the flag flying. The flag, he said. was briefly placed by his wife, Martha-Ann Alito, in response to a neighbor’s use of objectionable and personally insulting language on yard signs. Alito also claimed he did not participate in the decision to display the flag. Sounds to me like Alito is throwing his wife under the bus.

It wouldn’t be the first time. When I arrived on the campus of Princeton University in 1969, Class of 1973, I was greeted by students asking me to sign a petition opposing the admission of women to what had been an all-male school. My response was to say that the only thing I didn’t like about the admission of women, which began with my class, is that there weren’t enough of them.

The year 1972 brought the formal creation of an organization calling itself the Concerned Alumni of Princeton (CAP). CAP was founded with a singular purpose, to force the university to rescind its coeducation plan. Samuel Alito, Princeton Class of 1972, was a major contributor.

At his confirmation hearing to become a justice of the Supreme Court, under questioning by Senator Ted Kennedy, poor Alito couldn’t remember being a member of CAP. And when shown proof, he testified that he could not remember the purpose of the organization. Yes, Alito has been throwing women under the bus for a long time.

Let’s put this in perspective. A Supreme Court justice who has no problem telling all the women in America what decisions they can and cannot make regarding their personal medical care is afraid to tell his wife that it might not be a good idea to have a visible endorsement of the people who tried to overthrow the government on display outside their home. I don’t buy it.

Alito is not the only justice who has wife problems. Through an extensive career in conservative politics Virginia Thomas, wife of Justice Clarance Thomas, has repeatedly maintained that her political activity represents no conflict of interest with her husband’s work on the Court. However, recent revelations have sparked ethical concerns. Ginni Thomas, as she is commonly known, exchanged twenty-nine text messages with Mark Meadows, then Trump’s chief-of-staff, in the tumultuous days after the November 2020 election. In these texts, she blatantly urged Meadows to subvert the democratic result and frustrate President Biden’s victory, aiming to keep Trump in power. These actions raised conflict-of-interest concerns and led to calls for binding ethical rules on the Supreme Court justices. Some experts have suggested that Thomas recuse himself from cases related to Trump due to this apparent conflict. The Thomas situation has drawn significant attention and debate, stressing the importance of maintaining impartiality and avoiding even the appearance of conflict-of-interest at the highest court in the United States.

Now we can add Alito to the mix. Alito not only seems to have pre-judged matters regarding the election of 2020 and does not appear to be impartial as he addresses the Trump related cases before him. There is also evidence the conspirators seeking to overturn the election results counted on Alito, as circuit justice for the District of Columbia, to issue a stay to stop Vice President Mike Pence from announcing the results of the Electoral College vote.

The Eastman memos, also known as the “coup memo,” were documents by John Eastman, an American law professor retained by then-President Donald Trump. These memos advanced the fringe legal theory that a U.S. Vice President has unilateral authority to reject certified State electors. According to Eastman, this would allow the Vice President to nullify an election and produce an outcome personally desired by them or their party. Trump and Eastman used these memos in an unsuccessful campaign to influence Pence. This extreme theory of the Vice President’s powers was morally dangerous and legally incorrect . The Constitution does not assign such power to the Vice President. The memos have been described as an “instruction manual for a coup d’état.” The California State Bar has recommended that Eastman be disbarred for his role in developing the plan.

Speaker of the House of Representatives Nancy Pelosi insisted the certification take place as scheduled, after the riot had been quelled and the Capitol secured. Pence followed the law and the Constitution and made the certification official. If that had been delayed, and time permitted a motion to stay the certification to be filed with Alito, who knows that would have been the outcome.

The ethics for a judge requires they avoid even the appearance of impropriety. Alito and Thomas fail this test. They should both recuse themselves from any decision regarding Trump’s work to overturn the results of the 2020 election. But they won’t.

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