There is no real antecedent in American history to the situation surrounding Justice Samuel Alito.
To recap, we learned last week that in the wake of the Jan. 6 attack on the United States Capitol — the culmination of an effort to overturn the results of the 2020 presidential election and keep Donald Trump in office in contravention of the Constitution — a member of the Alito household flew an inverted American flag on a pole on the lawn of the family’s home in Virginia. The flag, a traditional symbol of naval distress, had been repurposed by the extreme right as an emblem of the movement to “Stop the Steal.”
Justice Alito told The New York Times that his wife was responsible — that she flew the flag in defiance of a neighbor’s provocation. Fox News later reported that the provocation was a sign blaming the Mrs. Alito for Jan. 6. If that’s true, this makes the choice to fly the flag even stranger.
The most noteworthy part of Alito’s attempt to explain the flag, however, was what he did not say. He didn’t condemn the flag or disavow its meaning or distance himself from the insurrectionists. He only said that he wasn’t to blame.
This is where the scandal stood until Wednesday, when yet another story dropped about the Alitos, a home and a flag. Last summer, as shown in photos obtained by The New York Times, the Alitos flew an “Appeal to Heaven” flag from their vacation home in New Jersey. This flag, like the upside-down stars and stripes, was also carried by Capitol rioters on Jan. 6. The phrase “appeal to heaven” was used by the Enlightenment philosopher John Locke in his “Second Treatise on Government” and refers to a right of revolution.
And where the body of the people, or any single man, is deprived of their right, or is under the exercise of a power without right, and have no appeal on earth, there they have a liberty to appeal to heaven, whenever they judge the cause of sufficient moment.
The slogan was in circulation during the American Revolution, invoked by Patriot leaders as they pushed for independence. More recently, it has been adopted by the extreme right as a statement of resistance to the political and social order of the modern United States. They claim a right to revolution and, on Jan. 6, they acted on it.
If flying one of these two flags was enough, along with his sympathetic posture toward the insurrectionists in recent oral arguments, to raise suspicions about Alito’s allegiances, then flying both is as close as we’ll likely get to clear confirmation that he stands, ideologically, with the men and women who tried to overturn the Constitution for the sake of Donald Trump.
I mentioned, at the start, that there was no antecedent for this situation in American history. And there isn’t. Although there were several current and former slave owners on the Supreme Court during the secession crisis of 1860, only one — John Archibald Campbell, an appointee of Franklin Pierce — resigned his position at the start of hostilities in April 1861. Even then, he opposed secession, although he would eventually join the Confederate government as assistant secretary of war.