Following the revelation that Supreme Court Justice Samuel Alito’s home flew an upside down American flag and an “Appeal to Heaven” flag – symbols of the “stop the steal” movement – many have been complaining about Alito’s failure to demonstrate impartiality. This threatens the already imperiled public’s trust in the Supreme Court, they say.
When did Supreme Court justices ever give off the impression that they were impartial?
Justice Clarence Thomas has a long history of accepting lavish gifts and failing to recuse himself from cases brought to the Supreme Court when there is a clear conflict of interest. They are human and humans have interests. Supreme Court justices may have an interest in appearing impartial. They also have an interest in goods like money and yacht parties.
No ethics code has ever been enough to stop people in power from abusing their positions.
What constitutes our calls for Supreme Court justices to be impartial in the fulfillment of their duties? For justices themselves, impartiality may entail that interpreting the Constitution involves determining the original intended meaning when it was first ratified. Yet non-originalists might think that the authors of the Constitution wrote in intentionally vague terms to allow later generations to interpret it in a way that made sense for their times.
Justices are selected by sitting presidents precisely because of their perceived track-record of allegiance to the president’s ideology. None of this is done in the shadows.
At least in recent history, it is well-known that Republican Supreme Court nominees are selected from a pool of candidates provided by the Federalist Society, which advocates for originalist conservative interpretations of the Constitution. Currently, five of the nine justices are either associated or have been associated with the Federalist Society.
We’ve seen how these personal ideologies have impacted court rulings. The current originalist takeover of the Supreme Court led directly to the overturning of Roe v Wade by way of the Dobbs v Jackson decision. The originalist reasoning was that the Constitution never mentions a right to abortion.
Obviously this is a result of the personal political leanings of our current justices. There is no impartiality to be found because decisions cannot be made in a vacuum.
Each is known to endorse a particular approach to interpreting the constitution and to generally favor policies aligned with the party who nominated them.
One of the reasons we need a Supreme Court at all is that the law is very often vague, that is, there are arguments to be made for conflicting interpretations and we need a mechanism to adjudicate. This means that the image of impartiality can be secured by providing what appears to be reasonable legal interpretation despite a justice being motivated by political and ideological reasons.
It’s easy to wonder whether our current justices favor originalism for its own sake or because originalist interpretations will often favor their own pre-existing conservative values as was the case in Dobbs v Jackson.
A Supreme Court justice has among the most immediately impactful positions in the American government. Within a matter of months, the Supreme Court overturned Roe v Wade, shocking the status quo and producing widespread consequences, including inadvertently undermining the legality of in vitro fertilization.
Much of the criticism levied at the Supreme Court has been about their refusal to recuse themselves from cases where there is a conflict of interest. Some claim that Justice Alito should recuse himself from any future case involving former President Trump. Is it also the case that Christian judges should have recused themselves from Dobbs v Jackson?
No, but despite a gray area, justices should demonstrate impartiality when it comes to outside influences such as familial or financial relationships, among others. Asking for impartiality when it comes to political and ideological affiliations is asking for the impossible.
None of us actually know whether Justice Alito’s wife is to blame for the flags or whether Alito genuinely believes in the message that those flags symbolize.
But if it is true that Alito is sympathetic to what those flags stand for, the concerning part is not that he has political leanings, it’s that he’s dumb enough to think that the election was stolen and then dumb enough to allow flags associated with that movement to fly at his home.
Rafael Perez is a doctoral candidate in philosophy at the University of Rochester. You can reach him at rafaelperezocregister@gmail.com.