I had already decided to shut down my commentary for the day (judging from the traffic, I see that a lot of people are starting their Memorial Day Weekend early) when I saw a fascinating note on The Volokh Conspiracy, and I just can’t let it pass, since it puts the two posts (here and here) about the “Get Alito!” flag fixation in proper perspective.

Josh Blackman, a regular contributor to VC, a constitutional law professor at the South Texas College of Law Houston, and the president of the Harlan Institute, reminded readers about something that occured the day after election day in 2016, November 9. The Supreme Court was in session, and Justice Ruth Bader Ginsburg wore the jabot she only sported when dissenting from a majority opinion. Ginsberg herself had explained her sly fashion messaging in in 2014:

but in this case there was nothing to dissent from other than the obvious: Donald Trump, whom Ginsburg had called “a faker” before the election, had defeated Hillary Clinton. The Associated Press got the message and reported on it.

Unlike the Alito flags, there is no question about who was making the political statement regarding President Trump: it was Justice Ginsburg. Nobody fooled her into wearing that collar. A relative didn’t wear it, she did. Nor was the symbolism of the collar in question: Ginsberg herself had said exactly what it meant. This was a far less ambiguous and far more serious display of bias by a SCOTUS justice than the contrived flag outrage, yet no Republicans in Congress exploited the incident to call for Ginsburg to recuse herself from future cases, or to move for a Congressional censure.

Ah, but Ginsburg was a news media favorite, female, progressive, Democrat and cute in her casual and repeated crossing of the lines of judicial propriety. I have to check, but I don’t recall the members of my legal ethics expert association registering any problem with Ginsberg’s open protest of Trump’s election, while the listserv has been roiling over Alito’s flags all week, with Ginsberg-adoring female members being particularly indignant.

At the last second I deleted a comment I was ready to make yesterday after following the hypocritical thread. It read, “I’m sorry, but the partisan bias and hypocrisy being displayed here by alleged legal ethics scholars isn’t just depressing, it’s disgusting.”

Blackman concluded, “I have a very, very difficult time taking the outrage over the Alitos’ flags seriously. The Justices routinely convey messages through their words and deeds. Who gets to decide what is an appearance of impropriety? People who are inclined to despise the conservative Justices will draw the worst possible inferences from all of their acts….These people are loathe to co-exist with anything they disagree with, so will take umbrage at the slightest sleights.”

In contrast, I take it very seriously. The Double standard harshly demonstrates how little integrity and honesty exists even among our most trusted professionals.