What a justice's upside-down flag means for the Supreme Court

Mike Bebernes

A recent report that an upside-down flag — a popular symbol of the “Stop the Steal” movement to reject the 2020 presidential results — flew outside the home of Supreme Court Justice Samuel Alito in the days following the Jan. 6 assault on the U.S. Capitol has created yet another scandal for a court that was already mired in controversy.

Earlier this month, The New York Times reported that neighbors had spotted the inverted flag at Alito’s Virginia home in mid-January 2020, just a few days before President Biden was inaugurated. The next week, the newspaper published a followup story revealing that a flag featuring a different symbol popular among “Big Lie” proponents had flown outside Alito's beach house in New Jersey.

The upside-down flag has historically been used as a distress signal by the U.S. military, but in recent decades it has been wielded by a variety of protest movements on both the left and the right. After Biden won the 2020 election, it was adopted by supporters of former President Donald Trump who subscribed to Trump’s lies that the race had been stolen — which culminated in a Trump rally where his followers attacked the Capitol building in an effort to prevent Congress from certifying Biden’s victory.

The second flag, known as the “Appeal to Heaven,” is sometimes used by a particular religious segment of the “Stop the Steal” movement. Alito insists that he had no involvement in flying either flag, which he said were raised by his wife.

Legal experts told the Times and other news outlets that the upside-down flag was a clear violation of judicial ethics rules, which bar judges from making political statements that might undermine the public’s faith in their ability to be impartial in divisive cases. Unlike other federal courts, though, the Supreme Court enforces its own rules, meaning any response to the flag could only come from the justices themselves.

The judicial code also calls for judges to recuse themselves from cases in which their “impartiality might reasonably be questioned.” But like the ethics rules, recusal decisions are left up to individual judges. Liberal Justice Ketanji Brown Jackson, for example, chose not to take part in recent cases challenging Harvard’s admissions procedures because of her involvement at the school both as a student and a member of its board. Alito told Congress on Wednesday that he has no plans to recuse himself from any Jan. 6-related cases.

Alito isn’t the only conservative justice on the court to face ethical questions around the “Big Lie.” His colleague Clarence Thomas also faced calls to recuse himself from cases related to the election and Jan. 6, which he ignored, because of his wife’s involvement in efforts to overturn the results.

Thomas has also been at the center of controversy over his friendship with a wealthy conservative political operative, who reportedly brought Thomas along on dozens of lavish vacations over the past several decades. Alito has faced similar questions about his relationship with a different conservative billionaire who later had cases before the Supreme Court. Both justices have asserted that there is nothing improper about their actions. However, the incidents helped prompt the court to adopt a new voluntary ethics code.

Democrats have characterized the flag report as yet more evidence that at least two of the Supreme Court’s conservative justices can’t be trusted to fairly rule on anything related to Jan. 6. Democratic Sen. Dick Durbin, chair of the Senate Judiciary Committee, insisted that both Alito and Thomas recuse themselves from any cases on the issue — including the question of whether Trump has presidential immunity from prosecution, which is currently being considered by the court. Durbin also reiterated his call, echoed by other members of his party, for Congress to pass legally-binding ethics rules for justices.

Some left-leaning legal analysts have gone even further, arguing that Alito’s willingness to have such an inflammatory symbol outside his home is a sign of how the Supreme Court’s conservative majority feels no obligation to display even the appearance of political impartiality.

Judicial experts also worry about how this situation might further erode the public’s faith in the country’s highest court, which has hit record lows in recent years amid a wave of recent scandals and deeply controversial rulings — most notably the decision that overturned abortion rights established by Roe v. Wade.

Some Republicans have said they wish Alito had given more consideration to how the flag might be perceived. But they have roundly rejected suggestions that it indicates he’s incapable of doing his job fairly, arguing that it’s absurd to make the assumption that his wife’s response to a neighborhood spat in any way reflects on his ability to make sound decisions on the court. In the eyes of many conservatives, this controversy — along with broader criticism of conservative justices — is part of a Democratic campaign to pressure the justices into issuing less-conservative rulings or delegitimize the decisions that don’t fit their liberal worldview.

Durbin has rebuffed calls from some of his Democratic colleagues for an investigation into the flag incidents and has instead argued that the onus for reigning in the court falls on Chief Justice John Roberts.

The court is expected to release decisions in two major Jan. 6 cases — one concerning charges brought against hundreds of people who stormed the Capitol, the other on Trump’s immunity claims — within the next few weeks.

Anyone who is OK with the Big Lie can’t be impartial on Jan. 6 cases

“Who can possibly think he will decide this case in a neutral manner? Of course, Justice Alito's political leanings were already well-known. But the flag flying incident indicates he has strong views about the facts underlying this case. His decision seems pre-ordained.” — Leslie Levin, University of Connecticut law professor, to Salon

There’s zero reason to question Alito’s ability to rule fairly

“The left wants to tarnish Justice Alito’s reputation, as well as cause him to recuse himself from participating in any case involving Mr. Trump. No such recusal is necessary on ethical or any other grounds. The political views of spouses don’t dictate, or in our experience even influence, how a Justice will rule.” — Editorial, Wall Street Journal

Alito knows that there are no consequences, no matter how openly partisan he is

“The arrogance is bottomless. Why did the Supreme Court justice do this, or allow ‘Mrs. Alito’—on whom he pinned the blame—to do it? He knew it was petty. And he surely knew that, by conventional ethical standards, it was wrong. But he didn’t care because he knew that he stands beyond punishment for such acts.” — Michael Tomasky, New Republic

Liberals have lost the court, so they’ll take any chance to try to tear it down

“There are two transparent purposes of these: to intimidate the justices into trimming their sails for fear of more criticism, and (when that fails) to delegitimize their decisions and lay the groundwork for radical changes to destroy the Court in its longstanding form.” — Dan McLaughlin, National Review

The integrity of the next election is in serious danger with Alito on the court

“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.” — Moira Donegan, Guardian

The court’s critics are trying to turn a nonstory into a national scandal

“If you look hard enough, you can find disturbing symbols anywhere you look, but you must sometimes suspend logic and reason in order to do so. This does not seem like a situation where a sitting Supreme Court justice is supporting overthrowing election results; it looks like a situation where the New York Times is straining to make that the narrative.” — Liz Wolfe, Reason

Alito and Thomas shouldn’t be on the court at all

“There are currently strong grounds to impeach not just Samuel Alito but his fellow benchwarmer Clarence Thomas. Both judges have given evidence of disqualifying corruption as well as of their harboring insurrectionist sentiment.” — Jeet Heer, The Nation

Alito’s wife has every right to express any opinion she wants

“Mrs. Alito has both the constitutional right to express whatever political opinions she pleases, whether I like them or not, as well as a moral right to express them independently of her husband and his position on the court.” — Bret Stephens, New York Times

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