Sam Alito Has an Upside-Down Vision of Democracy

In the harrowing days after the violent insurrection at the U.S. Capitol in which rioters attempted to block the peaceful transfer of power, U.S. Supreme Court Justice Samuel Alito’s house was photographed with a troubling symbol. Flying above his Alexandria, Virginia residence was an upside down American flag, an emblem of the “Stop the Steal” movement. Simultaneously, a portion of that movement was busy in court explicitly targeting cities with large Black populations and making the case that hundreds of thousands of voters, many of whom are Black, should be disenfranchised. Months of voting disinformation fueled by former President Donald Trump, racial grievances and a cynical legal plot to overturn a democratic election converged on Jan. 6, leading to five deaths, endless destruction and a permanent stain on our democracy. And yet, there the flag was, in the days after Jan. 6, 2021, flying above the lawn of a Supreme Court justice who heard one of the many cases attempting to overturn the election results. 

Alito has since placed blame on his wife for this flag event and another Christian Nationalist flag popular among the “Stop the Steal” movement flying above his vacation home, but has not apologized or even acknowledged that the appearance of sympathizing with an insurrection could be concerning for a justice who is supposed to, at the very least, appear impartial. Exactly one week after the first flag story was reported by the New York Times, Alito made headlines once again. This time, for effectively greenlighting racial gerrymandering in a case out of South Carolina. This decision and a collection of other anti-democracy opinions throughout the years highlight a chilling throughline in Alito’s legal philosophy. Like his flag, Sam Alito has an upside down vision of democracy. 

Since he took the bench in January 2006 after being appointed by then-President George W. Bush, Alito’s guiding philosophy has targeted our multicultural and multiracial democracy. Last month, Alito authored a devastating opinion that is likely to make it extraordinarily difficult to fight racial discrimination in map drawing. This means voters of color will have little to no recourse if white Republicans abuse their map-drawing power as they did during the 2020 redistricting cycle.  

In South Carolina, Black voters will not have proper representation after the Court upheld a map that intentionally discriminated against the state’s Black voters and moved 30,000 voters to create a “stark racial gerrymander.” In response to the decision, Taiwan Scott, one of the plaintiffs challenging South Carolina’s map was “very disturbed about the outcome,” adding that “ it’s as though we don’t matter.” 

Writing for the court’s conservative majority, Alito and the court’s five other conservatives allowed the map to stand despite claims that the map “‘bleached’ Charleston County of 62% of its Black residents.” Determining that the lower court’s opinion blocking the map was “misguided” Alito concluded that the Republican-controlled Legislature — which was found to have unjustly moved 30,000 Black voters — should have been given the benefit of the doubt because the lawmakers were doing so to benefit Republicans, not white voters. “None of the facts on which the District Court relied to infer a racial motive is sufficient to support an inference that can overcome the presumption of legislative good faith,” the opinion reads.  

But this is not Alito’s first shot at disempowering voters who do not look like him or vote like he does. Alito’s disdain for voters, especially voters of color, has reared its head over and over again. Just last year, in a different case challenging Alabama’s congressional map, Alito wrote a dissent in favor of upholding a map that the lower court found diluted the voting power of Black voters in likely violation of the Voting Rights Act. Previously, three judges held that the state’s congressional map resulted in Black voters having  “less opportunity than other Alabamians to elect candidates of their choice to Congress.” 

In 2021, Alito wrote the majority opinion to uphold discriminatory voting laws out of Arizona that disproportionately impacted the state’s Hispanic, Native American and African American voters. In keeping these burdensome voting policies in place, Alito wrote that “some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.” 

Ahead of election day in 2020, the Republican Party of Pennsylvania asked the court to segregate mail-in ballots received after 8 p.m. on Election Day until three days after election day so that these ballots were not included in final vote counts pending the resolution of litigation. Alito granted this request, ordering election officials to separate the vote tally of these ballots, which could have created post-election chaos. Ultimately, this order did not change the outcome of the election but Alito was willing to disenfranchise voters who voted by mail in the midst of a deadly pandemic. Later in that same case, Alito seemed willing to hear the Trump campaign out, writing that the Supreme Court should not have rejected a post-election Pennsylvania challenge and should consider the lawsuit for future elections. 

In retrospect, it is extremely troubling to know the Alito residence was flying a flag associated with the “Stop the Steal” movement as he was deciding election related cases.  Both the upside down American flag and the “Appeal to Heaven” flag  — which is also displayed outside Speaker Mike Johnson’s (R) office — were carried by rioters at the Capitol on Jan. 6. The movement with which these flags are closely associated itself had one goal: disregard voters’ validly cast votes and install Trump as president. Alito claims that only his wife bears the responsibility for flying the flags above their shared home, writing, “My wife is fond of flying flags. I am not.” 

At best, and taken at his word, Alito does not care about an appearance of impropriety. At worst, the flags convey something much more sinister: a sitting Supreme Court justice sympathizes with insurrectionists and the movement to overturn the results of the 2020 election. In regards to the “Appeal to Heaven” flag, Alito wrote to Congress:  “I was not aware of any connection between this historic flag and the ‘Stop the Steal Movement.’” Even if what Alito says is true, legal experts have called the flag incidents violations of the Supreme Court’s own code of conduct that was adopted in the wake of other Supreme Court controversies last year. 

While the insurrection flags are illuminating and highlight the need for Supreme Court ethics reform, they don’t reveal something new; rather, they supplement what we already know about Alito. He is hostile to the idea of a mulitiracial, multicultural and multigenerational  democracy and instead empowers white Republicans to continue to consolidate power they have not earned.  

In his decision that effectively ignores how the state’s congressional map was drawn to dilute the power of Black voters, Alito concludes that it is not enough for Black voters to show their map does not represent them justly. Now, as a result, minority voters are left with one less tool to fight discrimination in map-drawing and voting. In her dissent, Justice Kagan aptly wrote: 

What a message to send to state legislators and mapmakers about racial gerrymandering. For reasons I’ve addressed, those actors will often have an incentive to use race as a proxy to achieve partisan ends. []And occasionally they might want to straight-up suppress the electoral influence of minority voters. []Go right ahead, this Court says to States today…Go ahead, though you are (at best) using race as a short-cut to bring about partisan gains—to elect more Republicans in one case, more Democrats in another. It will be easy enough to cover your tracks in the end[.]

Alito’s vision of democracy is not one where everyone’s vote counts and everyone’s voices are heard; instead, Alito tightly adheres to the Republican agenda, which places electoral successes and power consolidation above all else, leaving behind voters of color in favor of a homogenous, upside down view of society.