Courts work because people trust judges. Taking sides in this way erodes that trust.
In four decades as a federal judge, I have known dozens, perhaps hundreds, of federal trial and appellate judges quite well. I can’t think of a single person, no matter who named him, who has or would have engaged in such conduct. You just don’t do that sort of thing, whether it’s over the edge or just on the fringe. Flying these flags was like putting a “Stop the Steal” 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 the provocative behavior of a neighbor, I sympathize. (It’s unclear how the “Call to Heaven” flag came to be raised on her house.) Being a judge’s wife isn’t easy. On the one hand, no one should have to give up their right to free expression at the altar of marriage. On the other hand, it is not unreasonable to expect a spouse to avoid inconveniencing a loved one or complicating their professional life. This is true not only for Supreme Court justices, but also for people from many walks of life.
Let me give you an example. About 25 years ago, I presided over a death penalty case involving a nurse accused of murdering several of her patients at a Veterans Affairs hospital in western Massachusetts. It was a difficult case, which regularly made the front pages of our local newspapers. Let’s say my wife was strongly opposed to the death penalty and wanted to speak out publicly against it. I’m not saying it’s true, but let’s imagine it. The main emotional undercurrent in our marriage is, of course, deep and passionate love, but right next to it is equally deep and passionate respect. We would have had a problem and we would have needed to talk.
In this hypothetical situation, I would hope that my wife would have avoided making any public statements about capital punishment and would have refrained from discussing the issue with me during the course of the trial. On the other hand, if my wife had felt strongly the need to publicly espouse his views, I should have recused myself from presiding over the case, based on the appearance of bias.
Regardless of how this issue was raised, I certainly would not have had the temerity to pretend that my wife and I had never discussed the issue. Any such protest would have provoked loud laughter among those around us or among our friends. They know very well that we talk about everything.
