First for the Alito story: An upside-down U.S. flag flew in his front yard for days in January 2021, the New York Times first reported. That such a thing would happen at any time at a Supreme Court justice’s home is abhorrent. That it did so when the inverted flag served as a banner for the mobs who’d just besieged the Capitol and tried to subvert an election is not only arguably unethical (the Supreme Court was hearing cases related to the Trump-inspired “Stop the Steal” effort, and still is) but downright seditious. No matter if the hoisting was his wife’s doing, as Alito ignobly claimed.
Opinion Columnist
Jackie Calmes
Jackie Calmes brings a critical eye to the national political scene. She has decades of experience covering the White House and Congress.
Then on Monday, Chris Geidner, in his Substack publication Law Dork, disclosed that Alito last year appeared to have joined the Bud Light boycott protesting that brand’s advertised support for transgender people.
According to federal disclosure reports that Geidner posted, Alito sold shares in Bud Light’s maker, Anheuser-Busch, at the height of the controversy last summer and bought stock in competitor Molson Coors. The transactions didn’t involve large amounts of money, but here again, cases related to transgender rights were — and are — making their way through the courts to the Supremes.
To make matters worse, on Wednesday, the New York Times reported that another protest flag associated with right-wing, pro-Trump sentiment flew from the Alitos’ New Jersey vacation home last summer.
Alito’s apparent blindness to conflicts of interest and his penchant for peevish shows of right-wing partisanship are second only to those of his Republican-appointed colleague Justice Clarence Thomas, spouse of “Stop the Steal” schemer Ginni Thomas. Both justices reject calls to recuse themselves from pending cases stemming from Jan. 6. Both are complicit in, and perhaps responsible for, the court’s unconscionable delay in deciding whether Trump is immune from criminal prosecution for his role in the insurrection attempt. We might get its ruling by July, likely too late for a trial before November.
Also, both justices are in their mid-70s. And that’s where political calculations about the Senate come in.
It’s widely believed among court watchers and pundits that Alito and Thomas might well retire if Trump wins another term, so he could nominate much younger versions of themselves who could serve for many more decades to come alongside Trump’s trifecta of 50-somethings: Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. Trump could elevate younger judges such as those he tapped for lower federal courts — say, 40-something district court judges Aileen Cannon, who helpfully suspended his classified documents trial indefinitely, and Matthew Kacsmaryk, whose ruling outlawing a pill used for most abortions is currently before the Supremes.
A Republican-controlled Senate presumably would fast-track Trump’s high court nominees, and perhaps more than a couple hundred others for the lower federal courts — just as it did the first time around for Trump. A Senate still under Democrats’ control, however, could presumably force a reelected Trump to tap more moderate judicial candidates, and, if he refused, could slow-walk, shelve or reject extremists. Like more Alitos and Thomases.
Lest anyone doubt that Republican senators would be a conveyor belt for right-wing judges under Trump, or a blockade against Biden nominees if he wins a second term, Senate Republican Leader Mitch McConnell offered a reminder of their MAGA-apologist mindset on Wednesday. When a reporter asked him to weigh in on the Alitos’ flag, McConnell snapped, “I’m not going to dignify that with a response.”
Talk about misplaced indignation.
More voters, Democrats as well as independents and moderate Republicans who oppose right-wing activists throughout our judiciary, must cast ballots for the Senate as well as for president with the composition of the courts in mind — as conservative voters did for decades, successfully. Democratic candidates, including Biden, are doing more to raise awareness. But it’s not enough. The message has to be explicit, and frequent: The courts are on the ballot too.
A big test is in Democratic-blue Maryland, of all places. Larry Hogan, the popular former governor and probably the only Republican in the state who could get elected to the Senate, last week won his party’s nomination to fill the seat that Democratic Sen. Benjamin L. Cardin is giving up. The Democrats have to defend that seat along with those of incumbents in red states Ohio and Montana, and swing states Pennsylvania and Wisconsin. The party, with just a two-vote majority now, has already written off the Senate seat that Democrat Joe Manchin III is vacating in Trump-loving West Virginia, so every seat is crucial.
Hogan, a personable pragmatist and Trump critic, appeals to some Maryland Democrats despite his party label, and to moderate Republicans and independents who’ve otherwise soured on the Republican Party in the Trump era. Many of them backed him for governor, and might for senator. To entice them, the former “pro-life” governor has flipped to declare himself a “pro-choice” Senate candidate.
Yet because the Senate stakes are so much bigger than just Maryland, Hogan’s Democratic and other anti-MAGA fans should resist his charms this time. His victory would make it that much more likely that Republicans will capture control of the chamber with power to confirm federal judges and justices. His Democratic opponent, widely respected county executive Angela D. Alsobrooks, shows early signs of hammering that point.
Her challenge is to get voters who like Hogan to instead think strategically and do their part to help keep the Senate out of MAGA-fied Republicans’ control. The makeup of that other branch of government — the Supreme Court and the rest of the federal bench — could depend on it. That should be the thumb on the scale.