“An event that highlights the need to amend a law does not itself change the law’s meaning.”
—-Justice Joseph Alito, concurring in the case of Garland v. Cargill and re-affirming the ethical, legal, democratic and conservative principle that laws shouldn’t be ignored or changed by courts just because they no longer work the way they were designed to.
I guess this will be just one more reason for the Angry Left to try to “get” Alito. Maybe he likes to eat candy bars that a lot of the Capitol rioters ate, or something. May be they’ll hire a lip-reader to try to catch him saying something like “it was a riot!” while smiling. Conflict of interest! Recuse!
Re-affirming why the 6-3 conservative SCOTUS majority is good for democracy, the U.S. Supreme Court yesterday ruled that the Bureau of Alcohol, Tobacco, Firearms and Explosives (aka the ATF) exceeded its statutory authority when it tried to ban bump stocks by classifying them as machineguns. Machineguns are defined in an old statute, the National Firearms Act of 1934. It banned “machine guns,” encompassing today’s automatic weapons. The law “defines a machinegun as any weapon capable of firing “automatically more than one shot…by a single function of the trigger,” as Justice Clarence Thomas explained in the majority opinion. Although the definition also covers parts of a gun that are “designed and intended…for use in converting a weapon” into a machinegun, it does not cover “bump stocks.”
Bump stocks assist “bump firing,” which involves pushing a rifle forward to activate the trigger by bumping it against a steady finger, then allowing recoil energy to push the gun backwards, resetting the trigger. If the shooter maintains forward pressure and keeps the trigger finger in place, a semi-automatic rifle will fire like an automatic weapon (anti-gun fanatics don’t know the difference, and don’t care). The ATF’s “interpretive rule” published in December of 2018 banned stock replacements that facilitated this operation.
“When the going gets tough, the tough get unethical.”—Me. Also, in election year 2024, Machiavellian and disgusting.
These are repulsive people. When I saw the Rolling Stone headline, “Justice Alito Caught on Tape Discussing How Battle for America ‘Can’t Be Compromised,'” I thought, “Oh-oh.” Then I read the story. Alito was tricked by a left-wing James O’Keefe imitator (Ethics Alarms’ verdict on O’Keefe’s methods and conduct has been consistent and unequivocal from the beginning: he’s an unethical journalist, dishonest and untrustworthy, whose methods have occasionally uncovered hidden agendas that can’t be ignored) posing as a conservative admirer at an event. Attending the Supreme Court Historical Society’s annual dinner on June 3, Lauren Windsor, a progressive documentary filmmaker, introduced herself to Alito as a religious conservative. Then she proceeded to ask him leading questions and offer her own “opinions.” What she learned was that Alito was nice to strangers, and that with a stranger who seemed to admire him in a social setting, he chose to be agreeable rather than confrontational.
Here is the exchange: Windsor approached Alito at the event and reminded him that they spoke about political polarization at the same function the year before (who knows if they did or not, but if Alito didn’t remember, he wasn’t going to argue about it). In the intervening year, she told Alito, her views had changed. “I don’t know that we can negotiate with the left in the way that needs to happen for the polarization to end,” Windsor said. “I think that it’s a matter of, like, winning.” Alito’s reply: “I think you’re probably right. On one side or the other — one side or the other is going to win. I don’t know. I mean, there can be a way of working — a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So it’s not like you are going to split the difference.”
You will see from this that the Rolling Stone headline is misleading and deceitful. Alito’s comment could have been made from either side of the ideological spectrum: it shows agreement with neither side. Moreover, it begins “You’re probably right,” which could easily mean, “You’re full of crap, but you’re welcome to your opinion, and I’ll make you feel like a Supreme Court Justice agrees with you because I’m a nice guy and now you can tell your friends, ‘Justice Alito agreed with me!'”
I have often wondered about this phenomenon, reflecting back on my lucky hour-long conversation with Herman Kahn when he was widely regarded as the smartest man alive. He was an unpretentious, kindly, engaging individual, and throughout our conversation made me feel like I had expressed theories and ideas that he thought were perceptive and valuable. Maybe he left that meeting and told a friend, “Boy, I was just trapped talking to an idiot for an hour!” But he made me feel good, which is an ethical thing to do.
And I wasn’t secretly recording him so I could leak to the Washington Post my comments as his revealed beliefs.
Next Windsor told Alito: “People in this country who believe in God have got to keep fighting for that — to return our country to a place of godliness.”
“I agree with you. I agree with you,” Alito replied. Rolling Stone adds at that point that he “authored the Supreme Court’s 2022 Dobbs decision, which reversed five decades of settled law and ended a constitutional right to abortion.” Oh! I see. Alito voted to end Roe “to return our country to a place of godliness” ! He’s a religious fanatic! He helped end Roe because of his religious beliefs!
Read the words, as Sir Thomas More might say. All Alito says is that he agrees that people need to fight for what they believe. He doesn’t even say that he believes in God. He also just says, “I agree with you. I agree with you,” which under those conditions might mean, “Now, nice talking to you, but stop monopolizing my time and let me meet some other people.” There is no rhetorical smoking gun in this conversation and nothing illuminating or newsworthy, except perhaps that the desperate left is stooping to emulating an unethical conservative fake journalist to discredit the U.S. Supreme Court, and unfairly victimizing Joseph Alito for the third time in two weeks.
These are, I repeat, disgusting people.
The New York Times, I must note, was hardly better than Rolling Stone. It also treated this manipulated, unethically recorded and ambiguous conversation as news worthy, and had a deceitful headline of its own: “In Secret Recordings, Alito Endorses Nation of ‘Godliness,’ Roberts Talks of Pluralism.” That implies that Alito (and Roberts) were aware of the recordings, and worse, Alito did NOT endorse a nation of “godliness.”
Now this is desperation. The upside-down U.S. flag incident that the New York Times treated as a “scoop” three-and-a-half years after it took place started falling apart almost immediately, so then the Times concocted an even more attenuated flag-based theory that Justice Joseph Alito had signaled his approval of the January 6, 2021 rioting at the Capitol. In neither case was there any evidence that Alito flew the flags or was aware of their significance; he explained the incidents, but, see, because he’s a conservative SCOTUS Justice, the Axis just assumes he must be lying.
About that…. serial Ethics Alarms Ethics Dunce Eric Wemple, who is the Washington Post’s “media critic” these days, thus telling you all you need to know about the credibility of the Washington Post, was actually allowed to issue an op-ed yesterday condemning his own paper for its “deference to Justice Alito” handing “a scoop to the New York Times.” In this thing, Wemple really says that the Post ignored a “sizzling tip” in 2021. That there was a nautical distress signal flag flying over the Alito home was a sizzling tip! Sizzling! Yes, he really wrote that.
Oh, this is too good. If the Ethics God is responsible for this, she’s a genius.
You know that supposed “Stop the Steal”-connected flag that the Alito vacation home had flying over it briefly last summer? The flag that “proved” that the conservative Justice was either a serial mad flag-flyer who had engaged in “the appearance of impropriety” by showing his sympathies for the January 6 Capitol rioters twice, previously with an upside-down U.S. flag, or had wrongly “permitted” his wife to express such sentiments via flag twice, the first time almost four years ago? That flag?
That flag, the “Appeal to Heaven” flag, has been displayed along with other historic U.S. flags outside San Francisco’s City Hall for more than half a century. Along with 17 other flags representing different moments in American history, the flag favored by Mrs. Alito (of course the flag conspiracy purveyors are certain that the Supreme Court Justice is lying and that he is the real culprit, just because) appears in the Pavilion of American Flags in Civic Center Plaza.
…the main one being that the distress signal is appropriate, because the Axis of Unethical Conduct proved with this fiasco that it is ruthless, shameless, untrustworthy, and will do anything in 2024 to mislead the public if it might mean a few extra votes for Democrats. Or maybe the main one is that your friendly neighborhood ethicist was right about this story from the very start, which is why Fredo asked to make another appearance as my spokesman.
And this, my friends, is why we can’t have nice things.
Or a functioning republic.
Let me not get to far ahead of myself. Right now, the whole, biased, corrupt, anti-Trump, anti-conservative, Biden-protecting propaganda-spewing mainstream news media, the third partner in the Ethics Alarms-dubbed Axis of Unethical Conduct (“the resistance,” and Desperate Democrats completing the troika) is doing a mass Jumbo (“Flags? What flags?”) regarding what was its favorite earth-shattering scandal a week ago. This sudden amnesia was brought on because the Washington Post, perhaps seeking to embarrass its old rival, effectively eviscerated the Times’ “Get Justice Alito!” scoop, which EA first discussed here, and subsequently here, here, and here. (Don’t make me describe it again: I was sick of it days ago.)
Two days ago, the Post revealed that it had known about the first flag episode more than three years ago and had decided that it wasn’t newsworthy (because, as the revealed facts showed clearly, it wasn’t). Now-retired SCOTUS reporter Robert Barnes traveled to the Alito’s home on January 20, 2021, the day of Joe Biden’s inauguration, to follow-up on an anonymous tip he had received from some Alito-hating asshole neighbor about the flag. After investigating, Barnes and the Post concluded there was no story, because the flag-raising appeared to be the work of Martha-Ann Alito, Alito’s wife, not the Justice, as part of her dispute with her neighbors.
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.
The contrived Justice Alito flags controversy has exactly one valid use: it shows that the panicked Axis has lost all sense of proportion and self-preservation, that its ethics alarms are deader than Generalissimo Franco, and that between now and November nothing can be ruled out, from violent uprisings to horrified leftist wackos tearing off their clothes, painting themselves mauve and running amuck coast to coast while shouting dirty limericks. Good to know.
Last summer, two years after an upside-down American flag was flown outside the Virginia home of Justice Samuel A. Alito Jr., another provocative symbol was displayed at his vacation house in New Jersey, according to interviews and photographs.
This time, it was the “Appeal to Heaven” flag, which, like the inverted U.S. flag, was carried by rioters at the Capitol on Jan. 6, 2021. Also known as the Pine Tree flag, it dates back to the Revolutionary War, but largely fell into obscurity until recent years and is now a symbol of support for former President Donald J. Trump, for a religious strand of the “Stop the Steal” campaign and for a push to remake American government in Christian terms.
Three photographs obtained by The New York Times, alongwith accounts from a half-dozen neighbors and passers-by, show that the Appeal to Heaven flag was aloft at the Alito home on Long Beach Island in July and September of 2023. A Google Street View image from late August also shows the flag.
I can’t believe the Axis is still running with the ridiculous attack on Justice Alito because his house had an upside-down flag flying after the January 6, 2021 Capitol riot. I’m this close to resigning from the Association of Professional Responsibility Lawyers because so many members—about 75% of the organization is Trump-Deranged—are trying to support the claim that the episode represents “an appearance of impropriety” requiring the Justice to recuse from cases involving the election, trump, or future elections.
Ann Althouse somehow dredged up this follow up by a silly substacker named Chris Geidner who claims to be an “award-winning journalist.’ People actually pay to read what this idiot writes? Clearly, I’m doing something wrong….
Ugh. The old “public officials are responsible for keeping their wives in line” canard, which for some reason is only applied to conservatives by the mainstream news media. Or we could file this under “Hail Mary attempts to get the Supreme Court’s conservative Justices to recuse themselves so SCOTUS won’t strike down the totalitarian Left’s conspiracy to “get” Donald Trump by any means necessary, and law, ethics and democracy be damned.”
A New York Timesheadline yesterday shouted,“At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display.” Wow, what symbol was that? It was an upside-down American flag, seen flying over (much reviled, almost as much as Clarence Thomas) Supreme Court Justice Samuel Alito’s house for a few days in January 2021. Because the flag was up in the period between the January 6 riot at the Capitol Joe Biden’s inauguration, the Times infers that the flag meant that Alito thinks the 2020 election was stolen from former President Trump.
Of course the Times dredged up some unethical ethics experts to deceive their readers about the seriousness of this. “Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot,” writes the Times, ostentatiously avoiding mentioning the names of the experts who said, as I would have, “What? This is nothing!”
“It might be his spouse or someone else living in his home, but he shouldn’t have it in his yard as his message to the world,” said Professor Amanda Frost at the University of Virginia law school. This is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases,” she said.
Uh, no it’s not, but that analysis is the equivalent of the professor wearing an “I am a partisan hack!” sign on her forehead.
Boy, the laws and ethics intersection has been almost constantly in the news lately, led by the Fani Willis controversy in Georgia, which apparently will turn on whether the judge believes the justly beleaguered Fulton County DA really paid half of her paramour and co-Trump prosecutor’s expenses on various platonic < cough> trips and cruises in cash, though there’s no record of such payments. Willis’s father even took the stand to explain that keeping huge amounts of cash on hand is “a black thing.” I did not know that!
As Alice would say, “Curiouser and curiouser!” Then we have much ferment in the legal world over whether the New York County Supreme Court’s order for Donald Trump to pay an unprecedented $355 million for inflating asset values in statements of his financial condition submitted to lenders and insurers was just, cruel and unusual punishment, a bill of attainder, or self-evident partisan lawfare. Gov. Kathy Hochul didn’t help matters by trying to justify the award by saying that Trump is special (wink,wink) and we all know what that means when coming from a Democrat. I confess, I don’t know the New York law involved well enough to weigh in on this one, but the verdict certainly adds to the weight of evidence that there is a full-on press to use the courts to crush Trump before he can crush Joe Biden.
There were two non-Trump law and ethics stories recently worth pondering.
Ethics Alarms 