VIEWPOINT | Justice Black to wife: 'You must be beyond reproach'

By David Adler, The Alturas Institute

Justice Hugo Black loved the Supreme Court as much as anyone who has held a seat on the nation’s High Bench. When Black proposed marriage to his secretary, six years after the death of his first wife, he explained to her that he had been having a love affair with the Court for roughly twenty years. Accordingly, she, like Caesar’s wife, would have to be above reproach. Black wanted assurance from his fiancé that she would be above suspicion and, at all events, that she would be “a one-man woman.” He sought to avoid words and acts that would stain his, or the Court’s, reputation. Justice Black may not have had chocolate, flowers and a diamond ring in hand, or poetic whisperings in his voice, but his standard was not unreasonable.

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Like his predecessors, Justice Black understood that the Court’s reputation was inextricably linked to its prestige, and the Court’s prestige was the real source of its authority and influence. That’s why the Justices, historically at least, have regarded themselves as the gatekeepers of the Court’s reputation and standing with the public. The Court’s reputation and prestige generated respect for its decisions, which was crucial given the fact that the Court has no authority to enforce its rulings and is dependent on the executive to implement its decisions. If Americans perceive the Court to be a partisan political body, they are less likely to adhere to its rulings. Loss of respect for the Court’s rulings implies loss of respect for the rule of law. That’s why the Court’s public approval ratings are important.

Which is precisely why the news, revealed this week, that Justice Samuel Alito—or his wife—flew the American flag upside down in the front yard of their home in the days after the January 6, 2021, insurrection is so troublesome.  The Court’s approval ratings are at a historic low, and the Alito’s action threatens further decline in public support. The decision in the Alito Household to display the flag in a manner which, traditionally, declares distress and was a principal symbol used by those who believed the 2020 presidential election was stolen, the “stop the steal movement,” -- a distinctly pro- Donald Trump statement-- casts a further pall of suspicion over the Supreme Court. A Gallup News Poll in September of 2023, six months before the oral arguments in explosive cases involving the insurrectionists and the issue of presidential immunity from criminal prosecution, and the Court’s speedy ruling that former President Trump may not be disqualified from the ballot, indicated that only 40 percent of Americans approve of the Court’s work, while 58 percent disapprove. For an institution that requires reputation, prestige and, fundamentally, public trust, it is puzzling that the Alito Household would engage in such a partisan demonstration of their views.

To be clear, Justice Alito sent an email statement to the New York Times, in which he denied involvement in the decision to fly the flag upside down. “I had no involvement in the flying of the flag,” Alito said. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” As the late -night talk show host, Stephen Colbert, observed, “Justice Alito dropped a dime on his wife” when he blamed her for flying the flag upside down. Justice Alito has not said if he filed a dissenting opinion.

Let’s be fair to Justice and Mrs. Alito. As citizens, they have a right to vote for candidates who represent their political views. As a Justice of the Supreme Court, however, Alito is barred by ethical considerations from public demonstrations of his politics, since political statements, words and actions would undermine the rule that requires judicial impartiality and avoidance of conduct that inspires concerns about the “appearance” of partisanship. We may never know whether Justice Alito saw, while driving to and from work, the inverted flag flying over the driveway, or whether he and Mrs. Alito discussed the posture of the flag. If he was aware of the inverted flag, he committed a glaring ethical violation and should recuse himself from cases before the Court that involve the insurrectionists and Trump’s claim of immunity from criminal prosecution. As for Mrs. Alito if, indeed, she acted unilaterally, there is wisdom in following Justice Black’s standard.

David Adler is president of The Alturas Institute, a non-profit organization created to promote the Constitution, gender equality and civic education. This column is made possible with the support of the South Dakota Humanities Council, South Dakota NewsMedia Association and this newspaper.