This is a sharp and informative commentary by law professor Michael Dorf; an excerpt:
Using a symbol of support for Trumpist political violence as a means of responding to a personal insult accusing one of having supported Trumpist political violence is a way of identifying with Trumpism at its most repugnant. It aligns the Alitos with Ginni Thomas and other Trumpist conspiracy theorists. And it works as a rejoinder to the neighbor only insofar as it invokes the crude bullying of Trump and his movement.
Where does that leave us? To my mind, this event is part of a larger pattern I discussed earlier this month: as Trump has taken over the Republican Party, people who continue to identify with its policies increasingly normalize him and his authoritarian movement. One sees a version of this in the suggestion by Professor [Josh] Blackman (in the post linked above) that calling out Alito reflects a "double standard" in light of the fact that Justice Ginsburg didn't face nearly the same level of outrage for her (entirely accurate but nonetheless inappropriate) criticism of Trump in 2016.
Respectfully, that's not a double standard.
For one thing, Justice Ginsburg apologized, recognizing that her comments were inappropriate. Like Trump, Justice Alito doesn't apologize. Also like Trump, he blames the media and rationalizes.
For another and more fundamental thing, there's no double standard here because the outrage directed at Justice Alito is not primarily based on the fact that he or his wife voiced partisan political views. That's a no-no for a judge or justice (as Justice Ginsburg belatedly acknowledged) and probably a bad idea even for the spouse of a judge or a justice. The furor over the Alito upside-down flag is in a different league from ordinary concerns about a judge improperly signaling political views because of the substance of the political views signaled: support for the Big Lie that aimed and continues to aim to undermine American constitutional democracy.
Justice Alito was asked why a flag supporting an anti-democratic Big Lie flew at his house just days after a violent mob sought to prevent the peaceful transfer of power at the behest of an authoritarian President. He could have said he didn't know about the flag at the time. He could have said (but not credibly) that neither he nor his wife knew what the flag symbolized. He could have said that his wife chose to fly it, he knew what it meant, and he regrets it because in retrospect he realizes it created both an appearance of bias and of support for a profoundly anti-democratic movement. He didn't say any of those things. He issued a non-denial denial, which, while raising more questions than it answers, nonetheless provides further evidence of the erosion of any difference between conservative elites and Trumpism.
Justice Alito is probably the least capable judge on the current Supreme Court, quite apart from his appalling politics.
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