May 18th 2024.
According to recent reports from The New York Times, an American flag was flown upside down outside the home of Supreme Court Justice Samuel Alito in January of 2021. This particular display of the flag has become associated with former President Donald Trump's baseless claims of election fraud. The photo, which was obtained and published by the newspaper, shows the flag flying on January 17th, just days after Trump's supporters stormed the U.S. Capitol in an attempt to prevent the certification of Joe Biden's presidential election victory. Many of the rioters were also seen carrying upside-down American flags and chanting slogans such as "Stop the Steal."
This development has raised concerns over Alito's impartiality as the Supreme Court considers two major cases related to the Capitol attack. These cases involve charges against the rioters and whether or not Trump has immunity from prosecution on election interference charges. Justice Alito has stated that the flag was placed there by his wife during a dispute with their neighbors.
Democratic Senator Dick Durbin, who chairs the Senate Judiciary Committee, has called for Alito to recuse himself from cases related to the 2020 election and the January 6th insurrection. In a statement, Durbin expressed concern over the appearance of bias, stating that flying an upside-down American flag, which has become a symbol of the "Stop the Steal" movement, clearly creates the perception of partiality. On the other hand, Republican Senator Tom Cotton has dismissed the report, calling it an attempt to intimidate the justices.
This incident comes in the midst of calls for another conservative justice, Clarence Thomas, to recuse himself from cases related to the 2020 election due to his wife's public support for Trump. It also coincides with a decline in public trust for the Supreme Court, with experts pointing out that the flag's display goes against ethics rules that aim to avoid even the appearance of bias.
At the time the flag was flying, the Supreme Court was still considering whether to take up cases on the 2020 election. Ultimately, the court rejected them, with three conservative justices, including Alito, dissenting. Alito wrote that the court's consideration of these cases would not have affected the outcome of the election but would have provided guidance for future elections.
In response to the report, Justice Alito acknowledged the presence of the flag at his home but stated that he had no involvement in its display. He explained that it was briefly placed there by his wife in response to a neighbor's use of offensive language on yard signs. The Times also reported that Alito's wife was involved in a dispute with another family in the neighborhood over an anti-Trump sign on their lawn.
Judicial ethics codes emphasize the importance of judges remaining independent and avoiding any political statements or opinions that could influence their decisions. In November of 2023, the Supreme Court adopted its own code of ethics, following continuous criticism over justices' undisclosed trips and gifts from wealthy donors. However, the code lacks a means of enforcement.
According to Amanda Frost, a law professor at the University of Virginia, flying the flag upside down is equivalent to displaying a "Stop the Steal" sign in one's yard, which is problematic if deciding on election-related cases. She believes that even if the flag was placed by someone else living in the home, it still sends a message to the world and is not appropriate for a Supreme Court justice.
The Supreme Court has reportedly warned its employees about displaying any public signs of political leanings. However, it is unclear if these rules apply to the justices themselves. According to the U.S. Flag Code, the American flag should not be flown upside down unless in a situation of extreme danger. It has been used as a symbol of protest by both the left and the right on various issues over the years. In this case, it has become a symbol of Trump's "Stop the Steal" campaign, fueled by his baseless claims of a stolen election.
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