An Appeal to Sanity
The latest bogus hit job on the Supreme Court’s conservative bloc is not only bad politics, but bad history.
The past twenty years have seen a wholesale shift of the Supreme Court to the conservative side of the aisle, both via fortunately-timed vacancies and hard-nosed practical politics. The originalist strain of the judiciary has won a significant victory, counting a clear majority on the Court and influencing the lower levels of the federal judiciary just as heavily. Even liberal Justices have had to pay lip service to the ideas of originalism, with the newest judge on the high court, Ketanji Brown Jackson, referring to herself as an originalist in her confirmation hearings.
This triumph isn’t total – yet – but it is already paying dividends for the conservative legal movement: the overturning of Roe v. Wade, the rulings against affirmative action and for the free exercise of religion, and the limitation of presidential power in the case of student loan cancellation. More such rulings are likely to come, as the originalist majority sits at a comfortable 6-3 and the upcoming presidential election looks to be leaning towards Republicans.
But these facts are entirely unacceptable to the progressive left – in judicial chambers, political circles, and the media. Unfortunately for them, they do not have the ability to remake the Court in their image; packing it is extremely unpopular, impeaching and removing originalist Justices is a non-starter, and there do not seem to be any upcoming vacancies to be filled before the November elections. Lacking the capability to alter the makeup of the Supreme Court through more traditional means, the progressive left has angrily resorted to underhanded, harebrained, factually-challenged schemes instead.
They have targeted multiple sitting conservative Justices since the beginning of President Biden’s term in 2021, focused most heavily on the staunchest and longest-tenured GOP appointees: Clarence Thomas and Samuel Alito. Those two Justices – plus their late colleague Antonin Scalia – have been the bane of the left’s existence for more than a decade now, helping to drive the Court’s shift to the conservative position through their opinions and dissents in key cases on hot-button issues like guns, religion, speech, and government overreach. Both have been criticized and undermined by the left from their very appointments. Thomas was targeted by the relatively evidence-free Anita Hill harassment allegations during his confirmation hearings in 1991, while Alito was tarred by being nominated by George W. Bush, a man who, to the left, stole the 2000 election. (Sound familiar?) But the recent attacks have been even more meretricious and absurd.
Justice Thomas, for decades the only African-American judge on the land’s highest court, has been the focus of vitriolic attacks from the progressive legal movement and its backers in the left-wing media – in particular, ProPublica, an outlet supported entirely by progressive dark money groups like Arabella Advisors. First, he was attacked for his – this is not a joke, I swear – “extreme closeness with his wife,” Ginni, who is a conservative activist in her own right. Ginni Thomas’s politics are not her husband’s, and her activism has not seen her in any way bringing business before the Court. It is a bit ironic, though, to see a group of self-proclaimed feminists telling Clarence Thomas to control his wife and stop her from having independent political views. Next, Thomas was labeled corrupt because he has some wealthy friends who he has gone on vacation with. These friends, notably the billionaire real estate magnate Harlan Crow, have become close with the Thomases, partially due to their admiration for the judge’s incredible life story. As such, they have spent modest sums (for billionaires, at least) purchasing Thomas’s childhood home and other important parcels to use as a future historical site.
These activities have rendered Thomas a corrupt partisan in the minds of his critics, even though they are not at all unique to him. The number of paid speeches, free vacations, and political pals that liberal judges have had in the past dwarfs those of Thomas alone. The sainted Justice Ginsburg was notorious in this respect. Critics bring up the resignation of the corrupt former SCOTUS Justice Abe Fortas, claiming he stepped down over a $20,000 payment; in reality, Fortas not only took that payment from a man with business before the Court, he was also simultaneously advising President Lyndon Johnson and leaking private deliberations to the White House. These are entirely different situations, but the egregious misconduct of Fortas is downplayed in hindsight because he had the ‘correct’ politics.
Justice Samuel Alito has become the new bête noire of the progressive set, partly due to their inability to oust Thomas and partly due to his penning of the Dobbs decision that overruled Roe. But the case against Alito is even more ridiculous than the assaults leveled at his colleague. It revolves around – I kid you not – vexillology. If you haven’t heard that term before, you aren’t alone; it is the study of flags, not exactly the most common field of learning. But, you say, how could there be a Supreme Court controversy over something as ridiculous as flag-flying? Reader, let me state for the record that I totally agree. This is far more of a non-troversy than it is a controversy, but it has spawned several news cycles, dominated non-Trump legal coverage, and generated more than a few multi-bylined New York Times articles.
The whole brouhaha started when the Times published an ‘investigative’ article accusing Alito of being sympathetic with the January 6 “Stop the Steal” rioters because there was an upside-down American flag flying from his home’s flagpole in late January 2021. The reporter-cum-progressive-activist Jodi Kantor, who has pushed this spurious narrative from the beginning, makes the case that since this variation of flag was present at the Capitol riot, it being flown at the Alito house proves that he was in league with the 2020 election conspiracists. Her additional ‘evidence’ has to do with the fact that Alito dissented from a denial of certiorari in an election-related case, but the rationale for that dissent was the idea that the Supreme Court should hear any and all cases brought by one state against another, as such cases are part of its original jurisdiction.
In reality, this entire hullaballoo started because of a domestic dispute that Alito’s wife had with a particularly partisan neighbor, who had called Mrs. Alito several nasty slurs and displayed nakedly anti-Alito signage on her lawn. The upside-down flag was a response to this near-constant provocation, intended to signal her disapproval and upset. Historically, the inverted flying of the American flag has been used to show distress, especially on ships at sea. Mrs. Alito’s version, if a bit melodramatic, fits within this classical use case. The Washington Post had the story multiple years ago, but chose not to publish it, as a random neighborhood dispute isn’t exactly newsworthy. For that shockingly reasonable choice, they’ve been excoriated by the progressive set. Not only did this ‘scandal’ appear out of nowhere three full years after the fact, it was boosted by another vexing vexillological calumny, also pushed by Kantor and her colleagues at the Times. This one, however, is even more preposterous.
According to photos they obtained via Google Street View – yes, really – the Alitos flew “another provocative flag” at their beach house in New Jersey. That flag was once again associated with the January 6 riot, simply because some random people decided to fly it that afternoon. What was the flag that so struck these journalists that they saw the need to pen another several thousand words about it? Was it a MAGA banner? An American flag with a cross on it? A pennant claiming Joe Biden was an illegitimate president? No, it was far, far worse. It was a standard bearing the image of a pine tree with the words “An Appeal to Heaven” on it. According to the “religion scholar” that the Times interviewed, “Until about a decade ago, the Appeal to Heaven flag was mostly a historical relic. But since then it has been revived to represent ‘a theological vision of what the United States should be and how it should be governed.’” That sounds scary, right? A theocrat on the Supreme Court?!
Once again, however, reality flies in the face of the progressive narrative. The Appeal to Heaven flag, despite the claims of the Times’s handpicked ‘expert’ is not remotely offensive, nor is it primarily, secondarily, or even tertiarily associated with the ‘Stop the Steal’ or theocratic nationalist movements. In fact, the flag was commissioned by George Washington himself, designed by his right-hand man during the American Revolution, and refers to a key phrase used by John Locke in his famous and highly influential Second Treatise on Government. That document was a major force behind much of the founding generation’s classically liberal and republican political ideology, meaning it has resonated through the centuries as a key basis of the American sociopolitical compact. It has flown at statehouses across the nation, was present on the flagpoles of San Francisco’s City Hall – that hotbed of right-wing theocratic radicalism – for decades, and remains the official maritime ensign of the state of Massachusetts. So much for being “mostly a historical relic.”
Attacking this standard, or even the upside-down American flag, as solely associated with the riotous behavior of a small number of radicals on one January afternoon is completely ludicrous. Plenty of those clownish buffoons also flew the traditional American flag on January 6; does that make it just as “provocative?” In the minds of New York Times journalists and the progressive legal movement they boost, the answer may actually be yes. And this gets to the true heart of the matter. None of these stories are serious attempts to investigate the misconduct of figures in our judiciary. Instead, they’re blatant attempts to undermine the American system itself and replace it with something that will merely rubber stamp radical progressivism.
These stories, slandering Justices Thomas and Alito, as well as others that have attacked Justices Gorsuch, Kavanaugh, and Coney Barrett, are meant to bolster the idea that the Court is fundamentally illegitimate because it has a conservative majority. Critics of these judges seek one of two options to rectify this illegitimacy: either the assigning of majority opinions to non-conservative justices – thus pushing the Court’s jurisprudence to the left – or the recusal of these judges from any and all cases that could possibly go against the progressive wishlist. No judge in his right mind would voluntarily recuse himself from an unrelated case due to factitious allegations such as these, leading the legal left to claim that these judges are willfully violating the law. They then use the refusal to accede to their demands to argue for their predetermined conclusion: that the Supreme Court must either be remade from the ground up, packed to ensure a majority conducive to leftist ends, or ignored entirely.
Such lawlessness is entirely within keeping with Democratic tradition and the historical progressive movement writ large. Radical reform was the watchword of the early 20th century progressive set, with ideas to significantly reshape American society and governance becoming the fashionable trend. This was instantiated by the greatest Democratic president of the period, Franklin Delano Roosevelt, who was only hamstrung by the Supreme Court itself. This led to the failed Court packing scheme, which went down in infamy as one of the man’s greatest blunders. Simply ignoring the Court goes back further, to the first true Democrat politician: Andrew Jackson. Old Hickory notoriously ignored the Court’s decision in Worcester v. Georgia, apocryphally stating “John Marshall has made his decision, now let him enforce it.” After appearing in the 19th and 20th centuries, this trend of refusing to countenance judicial reality is emerging once again in the 21st. But we must understand this for what it truly is: a naked power grab against the American constitutional order by a small minority of radical progressives. This is deeply concerning, especially as it has only ramped up in intensity as the Court has faced more contentious – and important – subjects. There is a silver lining to this increasingly dark cloud, though. The manufactured controversies that are the basis for the progressive (anti)legal project are farcical, and transparently so. Anyone with an open mind can see through the media-created haze to the heart of the matter: our core democratic institutions are legitimate, regardless of one’s opinion of their decisions. In that, we thankfully do not need to make a last-ditch appeal to Heaven; we simply need to make an appeal to sanity.