The First
What about the First Amendment? That’s the first question everyone asks, when they hear about United States Supreme Court Associate Justice Samuel Alito. He is an American citizen. Isn’t he “endowed” with the right to freedom of religion, speech, the press, peaceable assembly and to petition the government for redress of grievances? That’s the very first “thing” the Founding Fathers added to the Constitution. It was part of the agreement that got the Constitution passed by the states in the first place.
In case you missed it, here’s the story. In the days following the January 6th Insurrection in 2021, the Alito family flew an American flag upside down on the pole in front of their house. Flying the flag upside down means extreme distress. But at that specific moment it was symbolic of support for those who broke into the Capitol building and disrupted the peaceful transition of power. According to Alito’s “courageous” statement, “my wife did it”, in response to a “F**K TRUMP” sign down the street. But it wasn’t just a momentary statement of rage. The flag stayed up, upside down, for several days between the Insurrection itself and the inauguration of Joe Biden on January 20th. The Alitos’ were making a point.
Freedom from Responsibility
The First Amendment “freedom of speech” is kind of an odd thing. First of all, the Amendment doesn’t create an unqualified right to “say what I want”. We always go back to Justice Oliver Wendell Holmes limit: you can’t shout “fire” in a crowded theater. But there are other, more stringent requirements. And the entire “right” is simply a protection from the government making political speech “illegal”. There is no “right” to cuss out your boss, or threaten your neighbor, without repercussions. Sure, you can tell the “boss” he’s a “$&@!!”. But he can still fire you. The freedom of speech carries with it the responsibilities that come with exercising that right.
So if Sam Alito was Sam Smith, plumber; then fly the flag upside down: protected speech. Now if Sam Smith was in the Capitol, battling police, he might get fired from his job. But the flag thing, probably would be OK. I’m thinking of the woman who saw President Trump’s limo driving by, and decided to “fly” the universal middle-finger of disrespect. She was just “expressing” her view , but fired from her job. Fired, because she worked for the government. Essentially she was flipping-off her own boss.
Jerseys or Hats
But Alito is not Smith, and he’s not a plumber. He’s a Justice of the Supreme Court. He is one of the nine top judges in the Nation, sworn to uphold justice without fear or, as importantly, favor. Sure we know that there are six “conservative” Justices on the Court, and three “liberal” Justices. That’s how they view “the law”. But we still expect that they will set aside their personal politics and determine cases in front of them “by law”. To use a worn analogy, we do not expect Supreme Court Justices to don “Blue” jerseys or “Red” hats. And we certainly don’t expect them to side with those attempting to stop the ultimate symbol of American democracy, the peaceful transition of power from President to President.
Peaceful Transition
How big a deal is that transition? Long before we ever thought about Trump or Biden or MAGA or Insurrection, we taught the election of 1800 in school. Vice President Thomas Jefferson and his running mate, Aaron Burr, were running against then-President John Adams and his running mate, Charles Pinckney. At the time, each elector in the Electoral College got two votes for President. Every Jefferson elector, all seventy-three of them, chose Jefferson and Burr. Every Adams elector, sixty-five, chose Adams and Pinckney. But the original setup of the Electoral College (later changed by the Twelfth Amendment) did not make a distinction between Presidential and Vice Presidential votes. So Jefferson and Burr were tied for President.
A tie is broken by the House of Representatives, then controlled by Adam’s Party, the Federalists. Only the tied-two were on the ballot, so the Federalists had to choose between which Democratic-Republican they wanted for President. The “elder-statesman” of the Federalists was Alexander Hamilton, who supported Jefferson over Burr (continuing a long-running rivalry with Burr that would ultimately end four years late on the dueling field in New Jersey – “Everything’s legal in Jersey”).
After all of that, John Adams did not stand in the way of Jefferson’s inauguration. He left town for Quincy, Massachusetts, the morning of the ceremony, and Jefferson, his political enemy, was peacefully installed as the new President of the United States.
Without Violence
We taught this as a seminal moment in American history, the first peaceful transition of political and Constitutional power without guns or bombs or violence. That tradition was maintained, even in the Civil War, even in the Great Depression, even when the electoral tiebreaker failed and a committee chose the President in 1877. The peaceful transition held even when ballots were messed up in Florida, and the Supreme Court itself weighed in to stop the count and chose George W Bush as President in 2000.
Alito, the ultimate legal arbiter, took a side against the peaceful transition in 2021. At the minimum, he should recuse himself from decisions about actions on that fateful day. But he hasn’t, and he won’t. He sees himself as “above” the normal rules that govern judges, even Supreme Court judges. And, short of a politically improbable impeachment and conviction, there is nothing to require him to fulfill the rules.
Norms
Normal rules – what we define as norms. They are the “standards of behavior”, not set in stone or in law, but accepted as the “way to get things done”. The peaceful transition of Presidential power has some legal standing, but is mostly about “norms”. And the Justices of the Supreme Court are, but for impeachment and conviction, unfettered by rules. But they are subject to higher “norms”, because of their legal invulnerability. And that’s the point. When a Supreme Court Justice openly supports insurrection, the disruption of the peaceful transition of power – he’s blown the “norms” right out the window.
What is the “norm” for a Justice of the Supreme Court? In the case of the ultimate refusal to accept the actions of the current government, Justice John Archibald Campbell set the standard in 1861. After eight years on the Supreme Court, he resigned his seat to join the Confederacy, ultimately as Assistant Secretary of War. While you may not agree with his sentiments, at least respect his decision to follow “the norms”.
Alito can’t even do that.
