Bonus 81: Why Judicial Humility Matters

The biggest issue isn't the flags that the Alitos have flown outside their homes; it's that Justice Alito apparently doesn't think it's an issue in the first place

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

As I previewed on Monday, this week’s bonus issue takes something of a different look at the contretemps over the inverted U.S. flag that, as Jodi Kantor broke in the New York Times last week, flew outside the home of Justice Alito in the run-up to President Biden’s inauguration in January 2021. (With the late addition of yesterday’s reporting by Kantor, Aric Toler, and Julie Tate about a second problematic flag that the Alitos flew outside their New Jersey beach house for at least some time last summer.) A lot of folks have been quick to condemn the Alitos for their apparent support of the “stop-the-steal” movement, especially coming at such a late point (January 17, 2021 for the first flag; well into the Biden administration for the second)—when it was clear that (1) Biden had won; and (2) there was no chance of Trump lawfully remaining in office. Many of those same critics have claimed that Justice Alito should have recused from at least some of the election-related cases still pending before the Court at that point (and should recuse from the Trump immunity and January 6 obstruction cases now).

I had something of a different reaction. Although the substance of the Times’s reporting (and the Alitos’ behavior) is profoundly alarming, I was struck even more by Justice Alito’s first responses to that reporting—in a cryptic statement that he apparently provided to Kantor for the first story; and later in an interview he apparently agreed to give to Fox News’s Supreme Court correspondent, Shannon Bream. (Alito has not yet responded to yesterday’s story.) In addition to throwing his wife, Martha-Ann, under the bus, Alito’s responses (1) include justifications that can easily be (and have easily been) debunked; (2) reflect zero recognition that anyone could reasonably be troubled by that flag flying outside of his house; and (3) highlight a much larger problem with at least some of the justices’ behavior that isn’t limited to Alito: the dangerous (and growing) contemporary lack of any judicial humility.

Justices are humans. Humans make mistakes. Not only is it not the end of the world to acknowledge as much; if anything, candor and reflection on the justices’ part might serve only to burnish the Court’s credibility among those who aren’t already sold on it (or who have totally given up). But instead of either not responding at all to these stories or showing even a scintilla of contrition, Justice Alito chose to piss on us and tell us it’s raining. We—and the Court, as an institution—deserve better.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.