Who Gets to Judge the Judges
A new book about Supreme Court Justice Samuel Alito says that when controversy erupted over a flag outside his home, he rejected calls from critics that he recuse himself from cases involving the Jan. 6, 2021, attack on the U.S. Capitol. The same book says Alito did not step aside from the machinery of power, but he did give up authorship of the court’s opinion that prosecutors had gone too far in bringing obstruction charges against some Capitol rioters.
According to the book, after The New York Times broke the flag story in May 2024, Alito told Chief Justice John Roberts it would be better for the court if he did not write that opinion, and Roberts took the opinion himself. The book says The New York Times first reported the switch in September 2024, writing that it was not clear who initiated the change. So the court’s internal choreography stayed intact, even as the public was told to watch the drama from a distance.
The book says Alito said the flag belonged to his wife and was not flown in support of the "Stop the Steal" movement, the false claims that the 2020 election was stolen from President Donald Trump. It also says, "Everybody who knew the couple knew that Martha-Ann, a remarkably independent woman, was responsible for the flags." The dispute over the flag became part of the wider spectacle around the court, but the institution itself kept moving.
The Court, the Press, and the Script
The book says many Americans "viewed the press’s attacks on Justice Alito as nothing more than a contrivance to delegitimize a conservative Court majority they deplored." That line captures the familiar ritual: the court’s defenders, its critics, and the press all circling the same fortress while the institution remains in place. The controversy did not change the fact that Alito stayed on the bench and remained part of the court’s decisions.
The book is being published amid speculation about whether Alito, 76, is considering retiring. Fox News and others have reported that Alito won't be stepping down. The retirement chatter is just another reminder that the court’s power is treated like a private matter, as if the public is supposed to wait politely for the next announcement from above.
Alito is coming out with his own book in the fall, titled "So Ordered: An Originalist's View of the Constitution, our Court, and our County," which his publisher, Hachette Book Group, says will elaborate on his judicial philosophy and the role of the court in "preserving America’s spirit of liberty." The language is polished, institutional, and very much in keeping with the court’s favorite habit of dressing hierarchy up as principle.
What the Bench Has Done
The book says Alito has been a reliable vote for conservative causes since joining the court in 2006, moved the law to the right on issues ranging from criminal procedure to religious liberty, and authored the landmark decision in June 2022 that overturned Roe v. Wade and ended the constitutional right to abortion. That record is the real story behind the memoir chatter: a justice with the power to reshape daily life for millions, while the institution presents itself as neutral.
It says he was "disappointed by the lack of a sense of urgency in some of his colleagues about censorship and other threats to our constitutional order." The phrase is revealing in its own way, because the court’s idea of “order” is the order of the bench, the order of the state, the order of managed legitimacy.
Another book about Alito, also published this month, says he is trying to right the wrongs of the past six decades, as he sees them. That book says, "It is a sincere and intelligently wrought theory, but one born of intense feelings of anger and betrayal," and adds, "It seeks to impose what its adherents believe to be right and just from the halcyon memories of their childhoods. And it has rocked the facade of American law in the twenty-first century."
The fifth year after the Jan. 6 attack, the second year after The New York Times broke the flag story, and the fourth year after the Roe decision, the court’s power still sits where it always has: above everyone else, insulated by robes, procedure, and the endless theater of legitimacy.