Alito’s flag shows the US supreme court is neither honorable nor functional any more | Moira Donegan

These people can't help themselves. Last week, the New York Times revealed that during the days after the violent attack on the Capitol on 6 January 2021, when the US supreme court was still considering whether to take up cases challenging Joe Biden's election victory, the home of the supreme court justice Samuel Alito, in suburban Virginia, flew a pro-coup flag. The Times printed photos of the American flag flying upside-down on a pole in Alito's front yard; by January 2021, the upside-down flag had become a well-known symbol of the so-called "Stop the Steal" movement, champions of Donald Trump who supported his legal and violent attempts to overthrow the 2020 election.

At the time, pro-Trump social media groups were encouraging supporters to fly their flags this way; upside-down flags had been carried by some of the insurrectionists who stormed the Capitol, just a few days before the symbol appeared outside Alito's house. In the election case that was then before the court, Alito voted to hear Republican challenges to the election results. But he didn't get enough of his colleagues to vote his way. Not that time.

The flying of the pro-Trump, pro-coup flag is in clear violation of the ethics rules that apply to federal judges. After several high-profile controversies at the court - including investigations into gifts given to Alito and his fellow conservative justice Clarence Thomas by deep-pocketed Republican donors - a controversy arose over why, precisely, those ethics rules have never extended to the supreme court justices.

Under enormous political pressure, the court agreed to assign itself a version of those ethics rules last year, aiming, it said, to dispel any public concerns and recommit the court to maintaining an appearance of credible neutrality. (Such rules have long applied to court employees, who, the Times points out, are not permitted to so much as attend a protest or put a bumper sticker on their car.) The justices did not elect, however, to make the new ethics code in any way enforceable for themselves. They're not rules that can be enforced; they're guidelines that can be - and are - ignored.

The court is currently considering several cases stemming from the January 6 insurrection, and will rule on two questions that concern its aftermath in the coming weeks: first, whether insurrectionists can be charged with obstruction of an official proceeding; and second, whether Donald Trump can be held legally responsible for crimes he committed while in office. After this November's general election, there are almost certainly going to be further legal challenges to the election results, just as there were in 2020. Alito will be on the court to hear Trump's arguments in those cases, too.

The flag, then, is just the latest reminder of a disturbing reality: that as the Republican party further radicalizes against democracy, the supreme court - the body which is tasked with checking these unconstitutional impulses - has become their ally. The rule of law cannot be relied on to stem the tide of rising authoritarianism, because our legal institutions have been captured by the authoritarians.

Why would Alito make such a brazen display of his partisan loyalties and disregard for the legitimate results of an election at a moment when the court is under such intense scrutiny? When the Times asked him about the pro-insurrection flag, Alito blamed his wife: he said she put it up after getting in a fight with a neighbor who had an anti-Trump lawn sign. It's not clear exactly how this story is supposed to exonerate him: it doesn't explain why the Alitos used this pro-coup gesture, of all the possible options, as a way to retaliate against their progressive neighbors. And the story is still one in which the Alitos are affirmatively voicing their partisan loyalty in public, and showing themselves unable to tolerate even the proximate presence of Americans who do not share their own morbid, conspiratorial and punitive worldview.