What about the First Amendment?\u00a0\u00a0That\u2019s the first question everyone asks, when they hear about United States Supreme Court Associate Justice Samuel Alito.\u00a0\u00a0He is an American citizen. Isn\u2019t he \u201cendowed\u201d with the right to freedom of religion, speech, the press, peaceable assembly and to petition the government for redress of grievances?\u00a0\u00a0That\u2019s the very first \u201cthing\u201d 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.<\/p>\n\n\n\n
In case you missed it,\u00a0\u00a0here\u2019s the story.\u00a0\u00a0In the days following the January 6th<\/sup>\u00a0Insurrection in 2021, the Alito family flew an American flag upside down on the pole in front of their house.\u00a0\u00a0Flying the flag upside down means extreme distress. But at that specific moment it was symbolic\u00a0of support for those who broke into the Capitol building and disrupted the peaceful transition of power.\u00a0\u00a0According to Alito\u2019s \u201ccourageous\u201d statement, \u201cmy wife did it\u201d, in response to a \u201cF**K TRUMP” sign down the street.\u00a0\u00a0But it wasn\u2019t 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<\/sup>.\u00a0\u00a0\u00a0\u00a0The Alitos\u2019 were making a point.<\/p>\n\n\n\n The First Amendment \u201cfreedom of speech\u201d is kind of an odd thing.\u00a0\u00a0First of all, the Amendment doesn\u2019t create an unqualified right to \u201csay what I want\u201d.\u00a0We always go back to Justice Oliver Wendell Holmes limit: you\u00a0\u00a0can\u2019t shout \u201cfire\u201d in a crowded theater. But there are other, more stringent requirements.\u00a0\u00a0And the entire \u201cright\u201d is simply a protection from the government making political speech \u201cillegal\u201d.\u00a0\u00a0There is no \u201cright\u201d to cuss out your boss, or threaten your neighbor, without repercussions.\u00a0\u00a0\u00a0Sure, you can tell the \u201cboss\u201d he\u2019s a \u201c$&@!!\u201d. But he can still fire you.\u00a0\u00a0The freedom of speech carries with it the responsibilities that come with exercising that right.<\/p>\n\n\n\n So if Sam Alito was Sam Smith, plumber; then fly the flag upside down: protected speech.\u00a0\u00a0Now if Sam Smith was in the Capitol, battling police, he might get fired from his job.\u00a0\u00a0But the flag thing, probably would be OK.\u00a0\u00a0I\u2019m thinking of the woman who saw President Trump\u2019s limo driving by, and decided to \u201cfly\u201d the universal middle-finger of disrespect.\u00a0\u00a0 She was just \u201cexpressing\u201d her view , but fired from her job.\u00a0Fired, because she worked for the government. Essentially she was flipping-off her own boss.\u00a0\u00a0<\/p>\n\n\n\n But Alito is not Smith, and he\u2019s not a plumber. He\u2019s 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 \u201cconservative\u201d Justices on the Court, and three \u201cliberal\u201d Justices. That\u2019s how they view \u201cthe law\u201d. But we still expect that they will set aside their personal politics and determine cases in front of them \u201cby law\u201d. To use a worn analogy, we do not expect Supreme Court Justices to don \u201cBlue\u201d jerseys or \u201cRed\u201d hats. And we certainly don\u2019t expect them to side with those attempting to stop the ultimate symbol of American democracy, the peaceful transition of power from President to President.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n A tie is broken by the House of Representatives, then controlled by Adam\u2019s 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 \u201celder-statesman\u201d 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 \u2013 \u201cEverything\u2019s legal in Jersey\u201d). <\/p>\n\n\n\n After all of that, John Adams did not stand in the way of Jefferson\u2019s inauguration.\u00a0\u00a0He 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Alito, the ultimate legal arbiter, took a side against the peaceful transition in 2021.\u00a0\u00a0At the minimum, he should recuse himself from decisions about actions on that fateful day.\u00a0\u00a0But he hasn\u2019t, and he won\u2019t.\u00a0\u00a0He sees himself as \u201cabove\u201d the normal rules that govern judges, even Supreme Court judges.\u00a0\u00a0And, short of a politically improbable impeachment and conviction, there is nothing to require him to fulfill the rules.<\/p>\n\n\n\n Normal rules \u2013 what we define as norms.\u00a0\u00a0They are the \u201cstandards of behavior\u201d, not set in stone or in law, but accepted as the \u201cway to get things done\u201d.\u00a0\u00a0The peaceful transition of Presidential power has some legal standing, but is mostly about \u201cnorms\u201d.\u00a0\u00a0And the Justices of the Supreme Court are, but for impeachment and conviction, unfettered by rules. But they are subject to higher \u201cnorms\u201d, because of their legal invulnerability.\u00a0\u00a0And that\u2019s the point.\u00a0\u00a0When a Supreme Court Justice openly supports insurrection, the disruption of the peaceful transition of power \u2013 he\u2019s blown the \u201cnorms\u201d right out the window.<\/p>\n\n\n\n What is the \u201cnorm\u201d 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 \u201cthe norms\u201d. <\/p>\n\n\n\n Alito can\u2019t even do that.<\/p>\n","protected":false},"excerpt":{"rendered":"Freedom from Responsibility<\/h3>\n\n\n\n
Jerseys or Hats<\/h3>\n\n\n\n
Peaceful Transition<\/h3>\n\n\n\n
Without Violence<\/h3>\n\n\n\n
Norms<\/h3>\n\n\n\n