Vice President JD Vance has rejected a Supreme Court ruling by one of its most feted conservative judges after a Trump order that is pitting MAGA against MAGA.
He brushed aside the late Justice Antonin Scalia’s famous stance that torching the American flag is protected free speech, so that he could support Trump’s new crusade against flag burning.
Vance loyally backed Trump on Tuesday, but several MAGA names and Republican stars have sided with Scalia and his ruling, made decades ago in the Supreme Court.
Vance’s intervention comes after the president signed an executive order requiring that the Justice Department investigate and prosecute people for burning the American flag.
The order, which follows cases of protesters burning the flag at various anti-Israel and anti-ICE demonstrations, also directs Attorney General Pam Bondi to challenge the Supreme Court’s landmark 1989 decision, Texas v. Johnson.
The 5-4 ruling, written by liberal Justice William Brennan and backed by Scalia, declared for the first time that the government cannot criminalize the destruction of an American flag when done as an act of expression.
Four years before he died, the justice spoke about the Texas v. Johnson decision during a CNN interview with Piers Morgan, where he declared that “burning the flag is a form of expression.”
“Yes, if I were king, I would not allow people to go about burning the American flag,” Scalia said.
“However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.”
And in 2015, he told a meeting in Philadelphia, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”
The words of Scalia, who died in February 2016, echoed through the MAGA-sphere, presenting a dilemma: To side with Trump or side with the conservative judicial movement’s most significant figure.
Writing on X on Tuesday, Vance said the ruling was wrong and that Chief Justice William Rehnquist, who wrote the dissenting opinion, was right.
“Few things. 1) Antonin Scalia was a great Supreme Court Justice and a genuinely kind and decent person,” the Vice President said.
“2) The President’s EO is consistent with Texas v. Johnson. 3) Texas v. Johnson was wrong and William Rehnquist was right.”
Trump’s executive order was one of many signed this week as the president moves to exert control over the nation’s capital.
It instructed Attorney General Pam Bondi to look for ways to prosecute people who desecrate the national symbol “to the fullest extent permissible under any available legal authority.”
The move sparked rare criticism from MAGA Republicans and conservatives more broadly, who defended the SCOTUS ruling.
Conservative commentator Jessie Kelly described Trump’s move as “garbage.”
“I would never in a million years harm the American flag. But a president telling me I can’t, has me as close as I’ll ever be to lighting one on fire,” he said. “I am a free American citizen. And if I ever feel like torching one, I will.”
Radio host Dana Loesch shared a similar sentiment. “Flag burning is vile, but the government has no right to control speech or expression,” she wrote.
And Christian broadcaster Erick Erickson responded to a post describing the executive order with, “This is actually not brilliant.”
“While I agree with the sentiment, it is unfortunately well settled constitutional law that burning the flag is a matter of free speech and the executive does not get to create crimes,” he said.
Scalia was an Associate Justice of the U.S. Supreme Court from 1986 until he died in 2016.
He was known and respected for his staunch conservatism and textualist approach to constitutional law.
