Joseph Sabino Mistick: Justice denied

When U.S. Supreme Court Justice Abe Fortas resigned 55 years ago this month, he was facing congressional calls for his impeachment. He had been on the court for less than four years and had controversially remained a confidant of President Lyndon Baines Johnson.

The cause of his resignation was a $20,000-per-year lifetime fee that he had accepted from a friend’s family foundation before he joined the court. His friend was under federal investigation and eventually went to prison, and Republican senators had threatened Fortas with impeachment.

That seems like small potatoes now. Especially when you consider the more recent actions — both financially and politically — of Justice Samuel Alito and Justice Clarence Thomas.

Alito’s political involvement blew up last week with reports that two politically symbolic flags were flown at his home and beach house after the Jan. 6 insurrectionists attacked the Capitol.

An American flag was flown upside down at the Alito home in Alexandria, Va. Upside-down flags — an expression that the nation is in distress — were carried by the insurrectionists as the Capitol was under attack.

Amanda Frost, a University of Virginia law professor, told The New York Times that 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.” Alito claims that it was his wife, Martha-Ann, who flew the flag, not him.

At the Alitos’ New Jersey beach house, an “Appeal to Heaven” flag was flown this past summer. That flag, once flown by American revolutionaries, is now used by Christian nationalists and “Stop the Steal” supporters of Donald Trump.

According to ProPublica, Alito has had trouble separating his private life and public duty in the past. He went on an exclusive “high-end, all-expense-paid fishing trip to Alaska” in 2008 with an acquaintance “who has repeatedly had cases before the Supreme Court.” The gifts were not reported, and the justice did not recuse himself in those cases.

Thomas has similarly allowed his public and private lives to overlap. ProPublica reported that Thomas was the recipient of “at least 38 ‘destination vacations,’ 26 private jet flights, VIP sports passes, helicopter flights, private resorts stay and a ‘standing invitation’ for a private golf club.” None of those gifts were reported.

Ginni Thomas, the justice’s wife, actively supported overturning the 2020 election, and she was present at the Capitol on Jan. 6. She has been associated with groups that have submitted briefs before the Supreme Court. And Thomas did not recuse in those cases.

No one can deny the right of the justices’ family members to express their own political views. But that can cause an appearance of impropriety. There are now two upcoming major decisions involving the Jan. 6 insurrection and Trump’s efforts to overturn the 2020 election, and Thomas and Alito must step aside.

Abe Fortas did more for less. He said, “It seems clear to me that it is not my duty to remain on the Court, but rather to resign in the hope that this will enable the Court to proceed with its vital work free from extraneous stress.” Now it is time for these justices to do the right thing.

The American people deserve to know that Supreme Court justices cannot put their thumbs on the scale. Just as the Court’s 1857 Dred Scott decision continues to haunt the country, the reputation of the court may never recover from a wrong move here.