Opinion | The Alito Family’s ‘Appeal to Heaven’

There is no real antecedent in American history to the situation surrounding Justice Samuel Alito.

To recap, we learned last week that in the wake of the Jan. 6 attack on the United States Capitol — the culmination of an effort to overturn the results of the 2020 presidential election and keep Donald Trump in office in contravention of the Constitution — a member of the Alito household flew an inverted American flag on a pole on the lawn of the family’s home in Virginia. The flag, a traditional symbol of naval distress, had been repurposed by the extreme right as an emblem of the movement to “Stop the Steal.”

Justice Alito told The New York Times that his wife was responsible — that she flew the flag in defiance of a neighbor’s provocation. Fox News later reported that the provocation was a sign blaming the Mrs. Alito for Jan. 6. If that’s true, this makes the choice to fly the flag even stranger.

The most noteworthy part of Alito’s attempt to explain the flag, however, was what he did not say. He didn’t condemn the flag or disavow its meaning or distance himself from the insurrectionists. He only said that he wasn’t to blame.

This is where the scandal stood until Wednesday, when yet another story dropped about the Alitos, a home and a flag. Last summer, as shown in photos obtained by The New York Times, the Alitos flew an “Appeal to Heaven” flag from their vacation home in New Jersey. This flag, like the upside-down stars and stripes, was also carried by Capitol rioters on Jan. 6. The phrase “appeal to heaven” was used by the Enlightenment philosopher John Locke in his “Second Treatise on Government” and refers to a right of revolution.

And where the body of the people, or any single man, is deprived of their right, or is under the exercise of a power without right, and have no appeal on earth, there they have a liberty to appeal to heaven, whenever they judge the cause of sufficient moment.

The slogan was in circulation during the American Revolution, invoked by Patriot leaders as they pushed for independence. More recently, it has been adopted by the extreme right as a statement of resistance to the political and social order of the modern United States. They claim a right to revolution and, on Jan. 6, they acted on it.

If flying one of these two flags was enough, along with his sympathetic posture toward the insurrectionists in recent oral arguments, to raise suspicions about Alito’s allegiances, then flying both is as close as we’ll likely get to clear confirmation that he stands, ideologically, with the men and women who tried to overturn the Constitution for the sake of Donald Trump.

I mentioned, at the start, that there was no antecedent for this situation in American history. And there isn’t. Although there were several current and former slave owners on the Supreme Court during the secession crisis of 1860, only one — John Archibald Campbell, an appointee of Franklin Pierce — resigned his position at the start of hostilities in April 1861. Even then, he opposed secession, although he would eventually join the Confederate government as assistant secretary of war.

Campbell was a rebel, but he did not act as such from the bench. He did not back the effort to break the Constitution while still clothed in its robes. He did not use the power granted to him under our constitutional order to try to defend those who would tear it asunder.

If only the Alito family shared Campbell’s sense of propriety. Instead, we have two homes that fly the flags of insurrectionists and a justice who flirts with a fundamentally anti-constitutional theory of executive immunity, deployed in defense of a man who tried to rob the American public of its right to choose its leaders.

Alito has yet to speak publicly about this particular flag. If Senate Democrats surprise us all and issue a subpoena for him to speak before the Judiciary Committee, there is a good chance that he’ll refuse. He does not believe, as he told The Wall Street Journal last year, that Congress has the power to regulate the court.

But we don’t need him to speak to know where he stands.

What I Wrote

My Tuesday column was on Justice Alito and the role of sincerity in American politics.

Cynicism is as often as much a form of comfort as it is anything else. It is comforting, in a way, to believe that powerful people have better sense than those they represent or work with or try to appeal to. It is comforting to think that the red meat is for someone else. The disturbing truth is that there’s probably more sincerity than not in American politics. We may not want to believe it, but most of the people in charge say what they mean and mean what they say.

My Friday column was on Donald Trump’s plan to deport millions of immigrants if he is elected president a second time.

What is the plan, exactly? It begins, as [Stephen] Miller explained in an interview with Turning Point USA’s Charlie Kirk last year, with creating a national deportation force consisting of agents from Immigration and Customs Enforcement, the Drug Enforcement Administration, the Border Patrol and other federal agencies, as well as the National Guard and local law enforcement officials. The administration would empower this deportation force to scour the country for unauthorized and undocumented immigrants. It would move from state to state, city to city, neighborhood to neighborhood and, finally, house to house, looking for people who, according to Trump and Miller, do not belong. This deportation force would raid workplaces and stage public roundups, to create a climate of fear and intimidation.

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Now Eating: Chopped Herb Salad with Farro

Consider this my contribution to your Memorial Day spread. I love this salad. It’s nothing fancy, but it brightens up a plate and goes great with anything you might grill. And if your herb garden is running wild like mine is, this salad is a perfect way to use up some of that green. Recipe comes from NYT Cooking.

Ingredients

• 2 cups chopped fresh flat-leaf parsley (from 2 large bunches)

• ¼ cup chopped fresh mint

• 1 cup chopped arugula or a mix of arugula and other herbs

• ¾ pound (2 large) ripe tomatoes, very finely chopped

• 1 bunch scallions, finely chopped

• 1 cup cooked farro or spelt

• 1 teaspoon ground sumac

• Juice of 1 to 2 large lemons, to taste

• Salt to taste

• ¼ cup extra-virgin olive oil

• Small leaves from 1 romaine lettuce heart, leaves separated, washed and dried

Directions

In a large bowl, combine parsley, mint, arugula and/or other herbs, tomatoes, scallions, farro, sumac, lemon juice and salt to taste. Refrigerate for 2 to 3 hours so the farro marinates in the lemon juice.

Add olive oil, toss together, taste and adjust seasonings. The salad should taste lemony. Add more lemon juice if it doesn’t. Serve with lettuce leaves if desired.

Correction: A picture caption in last Saturday’s newsletter misstated the film from which the image was taken and the year of its release. It is from 1970’s “Beneath the Planet of the Apes,” not 1972’s “Conquest of the Planet of the Apes.”