The Volokh Conspiracy

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The Left Wing Attack on Judicial Independence and on Justice Alito

The left has abolished the secret ballot and legalized fraud-friendly mail in voting. now they want to destroy our independent judiciary


The Left wing attack on our traditional forms of constitutional democracy has had great success in abolishing cherished institutions like the secret ballot and same day voting. Emboldened by these wins, the Left has set its sights on eliminating judicial independence. Hate filled ethics attacks have been made on Justices Thomas and Alito. The Left is so mad about the overruling of Roe v. Wade, 410 U.S. 113 (1973), the abortion rights case, that they are now trying to force the Supreme Court's two most principled and brilliant members into resigning or recusing themselves from participating in important cases about the 2020 and 2024 elections, which they have a constitutional duty to help decide.

I wrote last winter on this blog that Justice Thomas's opinions show a steadfast devotion to the rule of law and are quite simply excellent on the merits. Not only is Justice Thomas incapable of being bribed, he is actually the best justice ever to serve on the Supreme Court in 234 years of American history. No one could read Justice Thomas's opinions and fail to be impressed by them. It is obvious on the face of things that Justice Thomas would never alter a word that he writes because of a gift from a friend.

The Left's attack on Justice Alito is based on an objection to the Justice's wife flying the U.S. flag upside down—a distress signal used by some but not by Justice Alito's wife—after the events of January 6, 2021. Justice Alito's wife raised the American flag in response to a dispute with a quarrelsome neighbor. A CNN poll on July 25, 2023 showed that nearly 70% of all Republicans think the 2020 presidential election was, in effect, stolen.

Under these circumstances, Justice Alito's wife has a First Amendment right to fly the U.S. flag in distress mode or to fly a Christian Appeal to Heaven flag to express her dismay and distress over anything at all. I well remember the parade of left wing law professors who hailed the U.S. Supreme Court's decision in Texas v. Johnson, 491 U.S. 397 (1989) that Americans have a First Amendment constitutional right to burn the flag to express their opposition to something the U.S. government was then doing. The opinion in Texas v. Johnson was written by liberal giant William J. Brennan and was joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony M. Kennedy.  It has been widely hailed by left and right wing law professors for 35 years as part of the gold standard on freedom of expression protections. Obviously, if you have a First Amendment right to burn the flag to express yourself, you have a First Amendment right to fly it in distress mode or to fly the Appeal to Heaven flag to express yourself.

Justices Thomas and Alito have quite appropriately stayed out of politics themselves, but it is unreasonable for the Left to demand that their wives stay out of politics too.  In this case, Justice Alito's wife was not even attempting to express a political idea.  The Left's recent practice of outing the behavior of the justices' wives is unprecedented, bullying, and unconstitutional insofar as it affects the Justices wives' exercise of their own First Amendment rights. The Left is demanding that, because of their wives' behavior, Justices Thomas and Alito should recuse themselves from Trump-related election cases. This outrageous demand just shows again that the Left is apoplectic that its 85 year choke hold on the Supreme Court majority has been broken. Justices Thomas and Alito should do their duty under the Constitution, which they swore to uphold, and they should sit on all the election related cases from 2020 or 2024 that come before the Supreme Court.

The Left should be ashamed of itself for seeking to politicize our independent, life tenured, judiciary.  Left. to their own devices, the Left would take a wrecking ball to all of our constitutional rights and freedoms. Thank God that we have men and women on the Supreme Court who are willing to stand up for the Constitution notwithstanding the hell that the Left has made of their lives. The Republican Justices have to travel in public in a cocoon of U.S. Marshall's who are hyper-vigilant about their safety. The Justices cannot walk into a store or restaurant without being accosted. This is how constitutional democracies die, my friends. We should denounce in the strongest possible terms those who threaten the independence of our life tenured judiciary.