VIDEO: NOT MY PRES DRUMPF / TRUMP DEFACING AN AMERICAN FLAG & PROSECUTING BURNING OF THE AMERICAN FLAG Executive Orders & Flag burning has a long history in the U.S. — and legal protections from the Supreme Court 25&27AUG25

 

MORE hypocrisy from the neo-nazi, fascist fotze pig bastard NOT MY pres drumpf / trump. I especially love how he mentions in his executive order "Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly" ( except you, eh draft dodging cadet bone spurs??? ). And he continues with "The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life.  Desecrating it is uniquely offensive and provocative.  It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security." His first administration and now his present one, with the gop / greed over people-republican party, has consistently and continually shown nothing but contempt, hostility and violence ( 6 JAN 21 ) against our democratic Republic. From the White House and NPR.....

Presidential Actions

PROSECUTING BURNING OF THE AMERICAN FLAG

Executive Orders

August 25, 2025

Section 1.  Purpose.  Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength.  Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly.  The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life.  Desecrating it is uniquely offensive and provocative.  It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security.  Burning this representation of America may incite violence and riot.  American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.

Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected.  See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).

My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.

Sec. 2.  Measures to Combat Desecration of the American Flag.  (a)  The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.  This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.

(b)  In cases where the Department of Justice or another executive department or agency (agency) determines that an instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action.

(c)  To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.

(d)  The Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law, including 8 U.S.C. 1182(a), 8 U.S.C. 1424, 8 U.S.C. 1427, 8 U.S.C. 1451(c), and 8 U.S.C. 1227(a), whenever there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.

Sec. 3.  Severability.  If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.

Sec. 4.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d)  The costs for publication of this order shall be borne by the Department of Justice.

                             DONALD J. TRUMP

THE WHITE HOUSE,

    August 25, 2025.

Flag burning has a long history in the U.S. — and legal protections from the Supreme Court

August 27, 20255:00 AM ET

By 

Joe Hernandez

A 2002 file photo shows demonstrators burning U.S. flags during a protest in front of the World Bank headquarters in Washington, D.C.

AFP/AFP via Getty Images/AFP via Getty Images

President Trump has long opposed flag burning as a form of protest, and now he's directing the Justice Department to prioritize prosecutions of people who set the American flag on fire.

On Monday, Trump signed an executive order instructing the attorney general to pursue cases against people who "incite violence or otherwise violate our laws while desecrating this symbol of our country."

When Trump signed the order, he said that there are a slew of ways people can protest the government. "But when you burn the American flag, it incites riots at levels that we've never seen before. People go crazy," he said.

Free speech attorneys note that the Supreme Court has ruled on multiple occasions that flag burning is protected by the First Amendment and say Trump's effort runs afoul of settled law.

David Cole, a professor at Georgetown Law who has represented flag burners in several high-profile cases, said people can legally use the American flag as they see fit.

"It can be used to wave it to express support for the government. It can be used to burn it to express opposition to the government," Cole said. "But what is most important is that the government doesn't get to tell us how we should use symbols and speech. We get to make those decisions."

President Trump holds up a signed executive order requiring the Justice Department to investigate instances of flag burning, in the Oval Office of the White House on Monday.

Evan Vucci/AP

American flag desecration dates back to the Civil War

Incidents involving the desecration of the American flag date back at least as far as the Civil War, according to Jonathan White, a professor of American Studies at Christopher Newport University.

"Some of it was Union soldiers who were really angry about the direction the war was going, and they might curse at the flag or say something negative about it," White said. "I also found women and young girls who were court martialed — tried before military courts — for desecrating the flag in some cases."

In the late 19th century, some U.S. states began passing laws blocking people from desecrating the flag, which led to a series of prosecutions of anti-war protesters during World War I, according to White.

During the Vietnam War, there was a resurgence in flag burning as critics blasted the U.S. government's ongoing involvement in the conflict. Congress passed the Flag Protection Act of 1968, and by 1989 there were 48 states with laws that in some way restricted the desecration of the American flag.

Anti-Vietnam War demonstrators burn a U.S. flag after marching to the State House in Boston in 1971.

Anonymous/AP

The Supreme Court case that protected flag burning

That same year, the Supreme Court heard the case of a man named Gregory Lee Johnson, who had been arrested five years earlier for burning an American flag at the Republican National Convention in Dallas to protest the actions of Ronald Reagan's administration. Found guilty of violating Texas law, Johnson was sentenced to one year in jail and fined $2,000.

But his appeals took him to the Supreme Court, which ruled in a 5-4 decision that burning of the American flag was a form of protected speech under the First Amendment.

"If there is a bedrock principle underlying the First Amendment," Justice William Brennan wrote in the majority opinion for Texas v. Johnson, "it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Notably, the ruling didn't divide the court neatly along ideological lines. In fact, one of the other justices in the majority was conservative icon Antonin Scalia. (In a post on X Tuesday, Vice President JD Vance called Scalia a "great Supreme Court Justice" but said "Texas v. Johnson was wrong.")

Congress attempted to ban flag burning at the national level that year, but the Supreme Court ruled again, in 1990, that it constituted free speech and struck down the law.

Trump's order nods to the free speech protections

Though Trump's executive order acknowledges the free speech rights associated with flag burning, it also says the Supreme Court has never held that flag burning is constitutionally protected if it's done in a way "likely to incite imminent lawless action or that is an action amounting to fighting words.' "

But Brian Hauss, an attorney with the American Civil Liberties Union, said the vast majority of people who burn flags aren't attempting to incite violence and suggested the Trump administration is looking for an excuse to take such cases to court.

"If somebody is burning a flag in protest and they're not telling people to go engage in violence, the government can't look at that any say, 'Oh, well, that could have the effect of causing violence to stir up so therefore we get to prosecute,'" he said.

Flag burning can be prosecuted when it violates what's known as a "content-neutral" law, such as an ordinance that prohibits outdoor fires in a certain area, the attorneys said. (A man who burned a flag outside the White House on Monday in protest of Trump's executive order was arrested by the U.S. Park Police for violating a statute barring fires in public parks, NBC News reported.)

But Cole, who was one of the attorneys for Gregory Lee Johnson in the 1989 case, said the Trump administration appears to be planning to selectively prosecute people who burn the flag.

"This executive order, by singling out flag burning and singling it out because the president finds its message offensive," Cole said, "will be Exhibit A [for] anyone who is in fact prosecuted under these content-neutral laws, arguing, 'Look, the reason they went after me was not the mere fact that I was burning something but the specific fact that I was burning the flag."

Cole also said the provision of the executive order threatening to deny or revoke visas and other immigration benefits to non-citizens who burn flags fails to recognize that the First Amendment protects everyone in the U.S.

"Just as you cannot throw someone in jail for burning an American flag, you can't deport someone for burning an American flag," he said. "So, at the end of the day, this executive order is symbolism and theater. It is not a realistic attempt to respond to any real world problem."

AMERICAN FLAG

 

Mike Johnson orders flags at the Capitol to be at full staff for Trump inauguration 14JAN25

GODSPEED PRES CARTER...

JUST because (NOT MY) pres elect donald "jessica"*drumpf / trump was having one of his childish hissy fits ass licking speaker of the House fascist fotze mike johnson ffr-LA has ordered the American flags at the capital to be flown at full staff on Inauguration Day, 20 JAN 25 even though Pres Biden has ordered American flags at all government buildings and offices and on all U.S. ships to be flown at half staff in honor of the late Pres Jimmy Carter. Well at least these neo-nazi fascist republicans have made it clear to the nation we don't even need to show pretend respect for any of them, ever. From the Washington Post.....

Mike Johnson orders flags at the Capitol to be at full staff for Trump inauguration

The House speaker announced Tuesday that the flags on the Hill will be raised for Trump’s inauguration next week and lowered again the following day to honor the death of former president Jimmy Carter.

January 14, 2025

By Maegan Vazquez

Maegan Vazquez is a politics breaking news reporter. She joined The Washington Post in 2023.
Flags at the U.S. Capitol will now fly at their full height on Inauguration Day and be lowered again the following day in honor of president Jimmy Carter’s death, House Speaker Mike Johnson (R-Louisiana) announced Tuesday.

“On Jan. 20, the flags at the Capitol will fly at full-staff to celebrate our country coming together behind the inauguration of our 47th President, Donald Trump. The flags will be lowered back to half-staff the following day to continue honoring President Jimmy Carter,” Johnson wrote on X.

After Carter’s death, President Joe Biden ordered U.S. flags be flown at half-staff for 30 days “at the White House and on all public buildings and grounds … of the Federal Government in the District of Columbia and throughout the United States and its Territories and possessions” as well as at federal facilities, military installations and vessels abroad.

The White House did not immediately offer a comment regarding Johnson’s announcement when contacted by The Washington Post.

Republican governors in at least five states — Florida, Iowa, Alabama, Texas and Tennessee — have also ordered U.S. flags be raised on Inauguration Day and lowered again to half-staff on Jan. 21 in honor of Carter. Biden’s executive order applies to American flags on federal property, and while state governments typically follow suit in lowering their flags, they’re not legally required to do so.

In a statement Monday announcing his decision to have flags in Texas fly at full height for Inauguration Day, Gov. Greg Abbott (R) wrote, “While we honor the service of a former president, we must also celebrate the service of an incoming President and the bright future ahead for the United States of America.”

Trump, five days after Carter’s death, had complained in a social media post about the prospect of American flags being flown at half-staff during his inaugural ceremonies, suggesting without evidence that Democrats were “giddy” about the possibility.

“In any event, because of the death of President Jimmy Carter, the Flag may, for the first time ever during an Inauguration of a future President, be at half mast,” he wrote on Truth Social. “Nobody wants to see this, and no American can be happy about it.”

The Associated Press reported on Monday that flags at Trump’s Mar-a-Lago Club in Palm Beach, Florida, were back flying at their full height after initially flying at half-staff in remembrance of Carter.

After Sen. John McCain (R-Arizona) died during Trump’s first term in office, the American flag above the White House was briefly lowered to half-staff over the weekend before being raised to full height again the coming Monday — an effective refusal by Trump to follow a tradition of leaving the flag at half-staff until interment. Flags at the U.S. Capitol and other locations, however, remained at half-staff.

Trump bitterly feuded with McCain while the senator was alive and continued to complain about him after his death. Amid intense scrutiny — including from the American Legion — about the change in the flag’s position, the flag was back at half-staff later the same day it had been raised, and Trump issued a statement offering “respect” for McCain.

Alito’s account of the upside-down flag doesn’t fully add up. Here’s why. & Former neighbor disputes Alito's explanation of upside-down U.S. flag flying at his home & Retired judge David Tatel issues a stark warning about the Supreme Court 5&6&7JUN24

 

SUPREME Court justice samuel alito and his fotze martha-ann are liars, as well as fascist neo-nazi bigoted authoritarians, well qualified for samuel to be a republican appointee to the SCOTUS. And I do not understand how either of them can be offended by anyone using the "C" word when they don't have a problem with their ex-president, their candidate for president in the 2024 Presidential election has had multiple affairs and talks about grabbing any woman he chooses by her pu$$i. But that hypocrisy goes right along with the lies both have told about the flags controversy and sammy's refusal to recuse himself from the legal cases involving drumpf / trump. These from the Washington Post 

Alito’s account of the upside-down flag doesn’t fully add up. Here’s why. 

A look at the major discrepancies in Justice Samuel Alito’s comments about controversial flags flown at his property and what he still has not fully answered.

June 5, 2024 at 2:15 p.m. EDT

By Justin Jouvenal

Justin Jouvenal covers the Supreme Court. He previously covered policing and the courts locally and nationally. He joined The Post in 2009.  Twitter

Supreme Court Justice Samuel A. Alito Jr. has offered multiple accounts of how politically charged flags came to fly outside his homes in Virginia and New Jersey — the type of display that is generally off-limits for judges, who must remain impartial and avoid even the appearance of bias as they handle cases.

Since the public revelation of the flags engulfed the nation’s highest court in criticism last month and prompted calls for Alito’s recusal from certain cases, the justice has said it was his wife who flew the banners, not him, and that she flew one of them after a neighborhood dispute. But his successive explanations — in a statement, an interview with Fox News and letters to Congress — have raised additional questions, and in some cases conflicted with known facts.

Alito has yet to fully explain some key aspects of the controversy: How long did an upside-down American flag fly at the Alitos’ Virginia home? Where did they get the “Appeal to Heaven” flag that flew at their New Jersey beach house? And more.

Here are the major discrepancies in Alito’s telling and what he still has not fully answered. Neither he nor his wife, Martha-Ann Alito, responded to a request for comment.

The neighborhood dispute

Alito has consistently cited the feud between Martha-Ann Alito and a neighbor as the backdrop for his wife raising the upside-down American flag at their Fairfax County, Va., home in the weeks after the Jan. 6, 2021, assault on the U.S. Capitol. But his description of the episode is contradicted at significant points by police records, neighbors’ descriptions of events and other facts.

Alito told Fox News reporter Shannon Bream the neighborhood dispute began when his wife went to speak with their neighbor Emily Baden in January 2021. Martha-Ann Alito was upset the woman was displaying an anti-Trump sign, with an expletive, “within 50 feet of where children await the school bus,” as Bream put it on X, formerly Twitter.

But Fairfax County schools were shuttered at the time because of the coronavirus pandemic and had been since March 2020. All but a tiny handful of students were learning virtually. Students did not return to the classroom until Feb. 16, 2021, after the flag episode occurred.

In addition, Baden and her mother said in interviews that the school bus stop near their home was moved before the dispute began and they confirmed no students were catching the bus at the time.

Baden told The Washington Post the row began shortly after Christmas 2020, when Martha-Ann Alito stopped by her home to thank her for taking down an anti-Trump sign featuring an expletive, which the justice’s wife said was offensive.

Baden said she told Alito that the sign would remain on display and had not been taken down, it had simply blown over. She also said Alito never mentioned the school bus stop. The conflict soon escalated.

Justice Alito has portrayed Baden and her then-boyfriend as the aggressors in the dispute, writing in letters to Congress that his neighbors had displayed a sign “attacking” his wife “personally.” But photos provided by Baden and interviews with a neighbor indicate the signs made no explicit mention of Martha-Ann Alito.

One featured the off-color reference to Trump on one side and the phrase “Bye Don” on the other. A second read “Trump Is a Fascist,” while a third read “You are Complicit.”

A sign Emily Baden said she displayed in front of her mother’s Virginia home. (Courtesy of Emily Baden)

It’s possible the Alitos thought the latter sign referred to them, but Baden said it was directed at Republicans who she felt were complicit in the Jan. 6 attack on the Capitol. A neighbor who saw the signs at Baden’s house confirmed that none directly referenced the Alitos.

In her telling, Baden said it was Martha-Ann Alito who confronted them on a handful of occasions. After the initial encounter, Baden said Martha-Ann Alito glared at them from her car on Jan. 7, 2021, and ran down her driveway and spat at Baden’s vehicle on another occasion.

Justice Alito told Bream a key moment in the dispute came when he and his wife were walking in the neighborhood sometime after the initial conversation. A man got into an argument with Martha-Ann Alito and called her a vulgar epithet for part of a woman’s anatomy, according to the justice. In his letters to Congress, Alito also said the man followed them down the street.

But Baden said that while that confrontation with the Alitos involved both her and her then-boyfriend, it was actually she who uttered the epithet, an account corroborated by a neighbor who heard it. Baden said she could not recall whether she and her boyfriend then followed the Alitos down the street.

Justice Alito told Bream that following the exchange his wife was “distraught” and raised the upside-down flag. A photo obtained by the New York Times showed the flag flying on Jan. 17, 2021.

The profane encounter between Martha-Ann Alito, Baden and her then-boyfriend occurred about a month after the upside-down flag was raised, according to a phone call the boyfriend placed to police on that day. A Fairfax County, Va., government spokesman confirmed that call was placed on Feb. 15, 2021.

Why were the upside-down flag and “Appeal to Heaven” flag flown?

The most pivotal question about the upside-down American flag has yet to be fully answered: Martha-Ann Alito’s motivation for flying it.

Many liberals have said the raising of the flag in the weeks after the Jan. 6, 2021, attack on the U.S. Capitol suggests sympathy for the “Stop the Steal” movement or solidarity with the pro-Trump rioters who believed the 2020 election was stolen and had adopted the symbol at the time.

They have called for Justice Alito to recuse himself from a pair of high-profile cases related to efforts to block the election results, arguing the flag indicates political bias or creates the perception that Alito is not impartial. Alito has refused.

The Alitos have not explicitly addressed whether the upside-down flag had a connection to Jan. 6 or “Stop the Steal,” and Justice Alito’s comments about his wife’s motivation for flying it have shifted.

• In comments to a Post reporter outside his home in 2021, Alito said his wife raised the flag in response to the neighborhood dispute and it was not political. Martha-Ann Alito, in her only known public comments about the flag, shouted at the reporter, “It’s an international sign of distress!” The upside-down flag does have a long history as a sign of distress in the military, and has been used by protesters of all political stripes at various times.
• Alito repeated his contention that a neighborhood dispute sparked the flag flying in a statement to the New York Times, which first reported the flag controversy last month. The justice then told Fox News reporter Shannon Bream the dispute began when his wife confronted a neighbor about an anti-Trump sign that featured an expletive, indicating the argument likely did have a political dimension.
• In letters Alito sent to Congress saying he would not recuse himself from the Jan. 6 cases, however, the justice’s explanation subtly changed. He said his wife flew the flag at a time of “great distress” over the neighborhood dispute, but also indicated it might not have been her only motivation, writing, “my wife’s reasons for flying the flag are not relevant for present purposes.”

The letters include a much more specific explanation of why Martha-Ann Alito flew the “Appeal to Heaven” flag at the couple’s vacation home on the New Jersey shore last summer. That flag has origins in the American Revolution, but has recently been adopted by some Christian nationalists and was carried by some Jan. 6 rioters.

A photo obtained by The Washington Post shows “An Appeal to Heaven” flag flying at a home owned by the Alito’s in New Jersey. (Obtained by The Washington Post )

Alito said he “assumed” his wife was flying it for religious and patriotic reasons. He definitively said neither he or his wife knew the flag was associated with the “Stop the Steal” and it was not flown in solidarity with that movement.

Alito did not issue a similar denial for the upside-down flag that flew at his Virginia home.

People hold an “Appeal To Heaven” flag in September 2020 in Philadelphia. (Michael Perez/AP)

How long did the upside-down flag fly?

A handful of neighbors who saw the upside-down flag at the Alitos’ residence said in interviews that they could not remember exactly when they first saw it but placed it in the latter half of January 2021, which matches the Jan. 17 date of the photo obtained by the Times.

Alito said in an initial comment to the Times that the upside-down flag flew “briefly.” Alito later told Bream it flew for “a short time.” In his most recent account in letters to members of Congress, Alito said he requested his wife take down the flag as soon as he saw it, but she refused for “several days.” Alito did not detail exactly when he saw the flag was up.

Some neighbors of the Alitos said they recalled seeing the flag flying for between two and five days.

As for Baden, she said she never saw the flag at the Alitos’ home.

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Former neighbor disputes Alito's explanation of upside-down U.S. flag flying at his home

• Transcript

GEOFF BENNETT: A former neighbor of Supreme Court Justice Samuel Alito said that, in her words, at worst, he's just outright lying about his account of a neighborhood dispute that led to hoisting an upside-down American flag at his Virginia home.

The inverted flag is associated with the effort to overturn President Biden's 2020 election win.

Justice Alito has been in the spotlight over flying controversial flags at his homes, as first revealed by reporting from The New York Times.

Our Lisa Desjardins joins us now.

So, Lisa, what's new here in this account?

LISA DESJARDINS: Some important details about the timeline are new, but I also want to talk about why this matters, of course.

Justice Alito is currently sitting on two cases about January 6, one about former President Trump's involvement in January 6.

These cases, of course, could determine a lot about our future here.

And, also, Justice Alito has defended himself as saying his wife hoisted the flag.

He said he will not recuse himself.

It is solely up to him, by the way.

And he's used this burden of proof.

He has said that, under the Supreme Court's ethics code, what matters is if someone who is impartial, who is able to look at all of the circumstances involved, if they think that he could be fair, then he should not recuse.

So the circumstances matter, because Justice Alito himself said they would.

Now, here's how he described what happened in a letter to Judiciary Chairman Dick Durbin.

He wrote: "A house on the street displayed a sign attacking my wife personally, and a man berated her in my presence using foul language, including what I regard as the vilest epithet that can be addressed to a woman."

Now, a couple of details in this.

He's saying that's why his wife flew this flag, which can be a sign of distress.

We know now from the neighbor who was involved that it was actually the woman who used that word about other women.

And she says that the timeline was completely wrong.

I want to take us through that timeline now, because it's important first.

We started January 6.

As you say, that is when we saw upside-down flags flying as the Stop the Steal movement attacked the Capitol, moved inside to try and stop the presidential election count.

Soon after that, Alito's neighbors put up a sign that said, "You are complicit."

They say it wasn't just about him, but about people in general.

Alito's family took that as being about them.

January 17 is when we know an upside-down flag was flying at the Alito home, according to The New York Times.

Now, the important piece here is Alito said, well, that was flying because of the confrontation.

But now we know there is evidence that February 15 is actually when that confrontation happened, after that upside-down flag had been flying.

Here's what the neighbor said to CNN.

EMILY BADEN, Neighbor of Justice Samuel Alito: At best, he's mistaken, but, at worst, he's just outright lying.

The interaction that happened on February 15 is the one that they're using as an excuse for why they flew the flag.

And I really want to hammer home the fact that that happened on February 15, and their flag went up two or three weeks before that.

LISA DESJARDINS: So, the question is -- this sounds like it's a minor thing about the timeline, but it's a very big deal over exactly why this flag that was about something that attacked our democracy was flying over a Supreme Court justice's home.

GEOFF BENNETT: So, Lisa what role does Congress have in all of this?

Because there are questions about whether or how Congress could ever impose a tougher code of ethics on the Supreme Court.

There are questions about the Senate Judiciary Committee.

Will they hold a hearing?

Will they call Justice Alito or Chief Justice John Roberts to the Hill to account for all of this?

Walk us through all of that.

LISA DESJARDINS: There are very loud calls among Democrats, including some on the Judiciary Committee, not just to call the justice, but to perhaps subpoena him.

I spoke with the head of that committee, Dick Durbin, this week.

And he said the problem is they don't have that power.

Under the rules of the U.S. Senate right now that was agreed to in this closely divided Senate, in order to issue a subpoena, a committee can do it by majority vote, but they can't take any action unless at least two Republicans come to that meeting.

So the thinking is, Republicans could simply boycott that meeting.

It wouldn't happen.

They cannot issue subpoena.

They cannot enforce it on the floor, which would also take 60 votes.

It's important because constitutional check and balances aren't the question here.

It's Senate rules that are preventing this kind of oversight.

Now, they could have a hearing they could call other people.

Dick Durbin has said he's doesn't think there would be much reason to that to do that at this point.

But he has said he thinks that Alito should recuse.

And here's what Durbin said this week on the Senate floor.

SEN. RICHARD DURBIN (D-IL): Displaying the upside-down American flag and Appeal to Heaven flag creates the appearance that Justice Alito has already aligned himself with the Stop the Steal campaign.

He cannot credibly claim to be an umpire calling balls and strikes in these cases.

LISA DESJARDINS: Durbin's committee is working on an investigation, not just of Alito, but of all Supreme Court justices.

And I'm told they had hoped to release it soon.

But all of this with Alito means now there's new things to investigate, and they don't know when they will release it.

GEOFF BENNETT: Lisa Desjardins, thanks so much.

LISA DESJARDINS: You're welcome.

Retired judge David Tatel issues a stark warning about the Supreme Court

In a memoir, the retired D.C. Circuit judge reflects on his career and the high court, regret about initially hiding his blindness, and his love for his guide dog, Vixen.

By Ann Marimow

Ann Marimow covers the Supreme Court for The Washington Post. She joined The Post in 2005, and has spent a decade writing about legal affairs and the federal judiciary. She previously covered state government and politics in California, New Hampshire and Maryland. Twitter

June 7, 2024 at 6:30 a.m. EDT

A retired federal judge has delivered an unusually stark warning about the Supreme Court and the future of the planet and democracy, which he says is imperiled by a conservative majority that is amassing power for itself while weakening minority voting rights and making it harder for the federal government to protect the health and safety of Americans.

In a memoir published this month, David Tatel joined other retired judges who have been publicly critical of the Supreme Court at a time when public opinion and confidence in the institution is at historic lows and as some justices have been consumed by ethics controversies.

Justice Stephen G. Breyer, who retired in 2022, shares more circumspect concerns about the court’s direction in his new book — “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” J. Michael Luttig, a long-retired conservative appeals court judge, has critiqued the Supreme Court’s decision to take up former president Donald Trump’s claims that he is immune from criminal prosecution for his efforts to remain in power after he lost the 2020 election.

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Supreme Court 2024 major cases

We’re tracking the major Supreme Court cases of 2024.

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Tatel’s commentary is notable because he only recently left the bench, and because he prided himself on judicial restraint and for his friendships with judges nominated by Republican presidents while serving on the influential federal appeals court.He is unrestrained, however, in “Vision: A Memoir of Blindness and Justice,” offering an unsparing take on the Supreme Court for chipping away at past precedent, most notably overturning Roe v. Wade in 2022 and restricting the use of race in college admissions last year.

The 82-year-old judge, a leading candidate for the high court during the Clinton administration, writes that he stepped down from the U.S. Court of Appeals for the D.C. Circuit in January in part because he was tired of having his work reviewed “by a Supreme Court that seemed to hold in such low regard the principles to which I’ve dedicated my life.”

“It was one thing to follow rulings I believed were wrong when they resulted from a judicial process I respected. It was quite another to be bound by the decisions of an institution I barely recognized.”

Conservatives have dismissed such critiques, saying they are based on disagreement with the outcome of the court’s rulings and its rapid shift to the right with the addition of three justices nominated by Trump.

Tatel calls for term limits for Supreme Court justices (“Eighteen years on our highest court is long enough”), and describes conversations about retirement he had with his friend, the late Justice Ruth Bader Ginsburg, and the political repercussions of her decision to remain on the court until her death. He also confesses to being a “little guilty” of gamesmanship in timing his departure from the bench.

There is no doubt, he wrote, that Ginsburg’s decision not to retire before the 2016 election contributed to Roe’s demise, because the justice’s death in 2020 allowed Trump to nominate Justice Amy Coney Barrett, who was the fifth vote to eliminate the nationwide right to abortion.

Tatel recalls how Ginsburg pulled him aside during a dinner at his home before Trump was elected to express annoyance with the commentators calling for her retirement while President Barack Obama was still in the White House and could choose her successor.

“I sometimes wonder if the public pressure to retire made Ruth even more stubborn. She was never one to succumb to pressure,” Tatel observed.

Tatel’s announcement in 2021 that he would take a lighter caseload or “senior status” gave President Biden plenty of time to get Judge J. Michelle Childs confirmed as Tatel’s successor before he officially stepped down in January.

The judge’s memoir offers a behind-the-scenes look at the art of judging, his career as a civil rights lawyer working to desegregate public schools and a deeply personal reflection on how he coped with, and initially hid, his declining eyesight from a retinal disease. He became blind in his early 30s.

“Looking back, I regret my refusal to discuss my blindness and the shame I felt when others mentioned it,” he wrote. “I now see that I was so wrapped up in my all-consuming effort to be ‘normal’ that I missed another opportunity to be upfront about my vision and help dispel stereotypes about the capabilities of people with disabilities.”

It is also something of a love story, detailing his devotion to the German shepherd guide dog, Vixen, who changed his life in 2019.

President Bill Clinton picked Tatel to succeed Ginsburg on the D.C. Circuit in 1994. He became a leading voice on the liberal-leaning appeals court, also known for his strong relationships with Republican appointees on the bench.

Collegiality, Tatel wrote, has nothing to do with having lunch or attending sporting events together — activities the justices have cited as evidence of their comity — and everything to do with “respecting each other, listening to each other, and sometimes even changing our minds.”

The loss of public trust in the Supreme Court is perhaps no surprise, he wrote, arguing that overturning Roe in just the second term after Barrett replaced Ginsburg looked like judges doing politics — or like judges making good on the campaign promises of the president who appointed them.

“Neutral judging fosters public trust in the rule of law, and that trust, in turn, gives courts their power to protect individual rights,” he wrote. “Judging that appears based on a preordained agenda, not on text or precedent or deference, depletes the reservoir of public confidence.”

Tatel is most critical of the Supreme Court’s rulings under Chief Justice John G. Roberts Jr. to limit the Environmental Protection Agency’s power to combat climate change and to weaken protections of the landmark Voting Rights Act.

Tatel wrote the D.C. Circuit’s majority opinion in 2012 to uphold a key provision of the voting-rights act. A year later, a divided Supreme Court invalidated that section of the law, which required states and localities with a history of discrimination to get permission from federal officials before changing election laws. Tatel called the decision — one of several that have undercut voting protections in recent years — a “tragedy for civil rights.” It cleared the way for more restrictive measures that disproportionately affect minority voters.

In the EPA case, Roberts wrote the majority opinion to cut back the agency’s ability to reduce carbon output from power plants. The ruling rested on the “major questions” doctrine, which says Congress must speak clearly when authorizing agency action on significant issues. Tatel denigrates such doctrines as invented to produce the court’s preferred outcome, and writes that they have no basis in the Constitution.

“By affording itself a roving mandate to disrupt any regulatory regime that strikes five justices as too ‘major,’ the Court strengthened its own hand at Congress’s expense,” he wrote.

Tatel’s critique is timely as the court is set to decide by the end of June whether to scrap a 40-year-old precedent that has required judges to defer to an agency’s reasonable interpretations of the statutes it administers. That approach, named for the court’s 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, has fallen out of favor with conservatives concerned that too much power is vested in executive branch bureaucrats without clear authority from Congress.

The son of a scientist and himself a former high-level official at the Department of Health, Education and Welfare, Tatel takes the opposite view of the government’s civil servants.

He warns that “as the world keeps getting more complex, we need expert agencies more than ever. Anyone concerned with the environment — or with safe medicines, unadulterated food, or cars that drive safely — has very good reason to worry about where this Supreme Court is headed.”