Courts work because people trust judges. Taking sides in this way erodes that trust.
In four decades as a federal judge, I have known scores, possibly hundreds, of federal trial and appellate judges pretty well. I can’t think of a single one, no matter who appointed her or him, who has engaged or would engage in conduct like that. You just don’t do that sort of thing, whether it may be considered over the line, or just edging up to the margin. Flying those flags was tantamount to sticking a “Stop the Steal” bumper sticker on your car. You just don’t do it.
Assuming it is true that it was Justice Alito’s wife who raised the inverted American flag, apparently in response to some provocative behavior from a neighbor, I do sympathize. (How the “Appeal to Heaven” flag came to be flown at his house is not known.) Being a judge’s spouse is not easy. On the one hand, a person should not have to forfeit the right to free expression at the marriage altar. On the other hand, it is not unreasonable to expect a spouse to avoid embarrassing a loved one, or complicating his or her professional life. This is true not only for Supreme Court justices, but for people in many walks of life.
Let me offer an example. About 25 years ago, I presided over a death penalty case involving a nurse charged with murdering several of her patients at a Veterans Affairs hospital in Western Massachusetts. It was a tough case, regularly on the front pages of our local papers. Let’s say my wife was strongly opposed to the death penalty and wished to speak out publicly against it. I’m not saying this is true, but let’s imagine it. The primary emotional current in our marriage is, of course, deep and passionate love, but right next to that is equally deep and passionate respect. We would have had a problem, and we would have needed to talk.
In this hypothetical situation, I hope that my wife would have held off making any public statements about capital punishment, and restrained herself from talking about the issue with me, while the trial unfolded. On the other hand, if my wife had felt strongly that she needed to espouse her viewpoint publicly, I would have had to recuse myself from presiding at the case, based on the appearance of partiality.
However this issue came out, by the way, I certainly would not have had the temerity to claim that my wife and I never discussed the problem. Any protestation of this sort would have provoked raucous laughter from our circle or friends. They know very well that we talk about everything.
