Between Yachts and Flags, It’s Time for Supreme Court Accountability

Red background of images with image of all nine Supreme Court justices with Clarence Thomas in a Hawaiian t-shirt, Samuel Alito with a red MAGA hat on and holding a sign that reads "It's Hers" and an upside down American flag behind him and John Roberts with his hand over his mouth.

Maya Angelou warned us: “When someone shows you who they are, believe them the first time.” Just how many times do the conservative Supreme Court justices have to show us who they are before we respond accordingly?

It’s one thing to accuse a political official of having a covert agenda or a bias that compromises their ability to do the job. It’s quite another when officials openly admit it and then quite obviously gaslight the public in response.

Consider the recent revelations that Justice Samuel Alito’s homes (plural) have flown flags (plural) associated with the 2020 election “Stop the Steal” campaign and supporting Christian nationalism. Alito was quick to pin all of the responsibility on his wife Martha-Ann (and triple down on that excuse), and his conservative surrogates jumped to his defense, claiming this was a plausible and reasonable explanation. But the truth is most evident in what he did not say.

Alito did not acknowledge that these flags were not only offensive to his neighbors, but also to the U.S. Constitution he is sworn to uphold. He did not acknowledge that flying these flags fell short of the ethical obligations of his position to avoid even the appearance of bias. While he claims to have “asked” his wife to take down the upside-down flag, he apparently made no other effort to remove this anti-democratic symbol from his own home — insisting, in fact, that he was powerless to do so. (If only his respect for women extended to those from whom he’s stripped bodily autonomy in reproductive decisions!) 

And not once has he apologized, even on behalf of his wife, for the offensiveness of expressing support for overturning an election or imposing Christian theology on the nation. The only takeaway is he was fine with the flag flying, but he somehow thinks he shouldn’t be held accountable for it.

Justices’ words can carry the weight of the law of the land and are therefore not mere acts of “free speech” or “opposing views.” They speak to the jurist’s ability — and willingness — to be impartial in the cases that come before them. Alito is literally flying his biases in front of his own home while arguing that only the beliefs he and his wife hold are under threat. Like his colleagues who’ve been scrutinized for their political biases, he is painting himself as the victim while openly daring us to hold him accountable for his own actions.

It’s time that we rise to the occasion. The Supreme Court has been weaponized as a political tool as much as the other two branches, and we are overdue to treat it as such.

After all, these recent Alito revelations follow a year-long cavalcade of reporting on Justice Clarence Thomas’s unethical behavior — to say nothing of his own spouse Ginni’s participation in trying to overturn the 2020 election. While public trust in the Court has spiraled downward, Chief Justice John Roberts’s silence has been deafening. This Court’s conservatives feel absolutely no threat to their power, and if we don’t act, we are only encouraging them to continue their bad behavior.

Congress has the power and obligation to respond. At the minimum, that should include hearings and investigations into the justices’ unethical and compromising behavior. But whether these lead to new findings or not, there needs to be actual accountability. That includes legislation to create an enforceable code of conduct for the Supreme Court; the toothless document the Court produced last fall is clearly insufficient.

But the Court’s growing legitimacy issue speaks to a more endemic problem of its structure. So long as justices are welcome to serve for the rest of their lives and are totally free to govern themselves, we can only expect this reckless and unethical behavior to continue. This is why it’s essential to advance reforms to the Court such as term limits that will curtail the unbridled power that justices continue to abuse.

Enough is enough. These justices have repeatedly shown us who they are — Alito and Thomas have demonstrably aligned themselves with movements dedicated to gutting the progress we’ve made on civil rights, environmental protections, reproductive rights, LGBTQ+ equality and so much more. It’s time we believe them — and finally do something about it.

Rakim Brooks is a public interest appellate lawyer and the president of Alliance for Justice. As a contributor to Democracy Docket, Brooks writes about issues relating to our state and federal courts as well as reforms to our judicial systems.

Keith Thirion is the vice president of strategy at Alliance for Justice.