WASHINGTON — An upside-down American flag has long been a sign of great distress and a versatile symbol of protest. But in January 2021, when it flew over the home of Supreme Court Justice Samuel Alito, it was largely seen in connection with a specific cause: the false claim by then-President Donald Trump’s supporters that the 2020 election was marred by fraud.
The revelation this week about the flag flown at Alito’s home was the latest blow to a Supreme Court already under fire as it hears unprecedented cases against Trump and some of those accused of rioting at the U.S. Capitol on Jan. 6, 2021 .
Alito has said the flag was briefly raised by his wife during a dispute with neighbors and that he had no part in it. But the incident reported by The New York Times adds to concerns about an institution that is increasingly seen as biased and without strict ethical guidelines.
The Supreme Court now faces questions about whether the spouses of two of its members are questioning the legitimacy of the 2020 election, and whether those justices should hear cases related to the Jan. 6 riot and Trump’s role in there. Judge Clarence Thomas, appointed by President George HW Bush, has resisted calls for recusal following reports that his wife Virginia Thomas was involved in efforts to overturn President Joe Biden’s 2020 election victory.
“We’re talking about a fundamental American value about peaceful transfer of power, about elections,” said Tony Carrk, executive director of Accountable.US, a progressive watchdog organization. “It’s just the integrity of the democratic process.”
Several Democrats in Congress called on Alito to recuse himself from Trump-related matters. Judges can and do voluntarily recuse themselves, but those are their own individual calls and are not subject to review.
There was no indication that Alito would do that. He did not respond to a request for comment sent through the court’s public information office.
Although the Supreme Court has long lacked its own specific code of ethics, its institutional reputation for being above political fray has long helped cement its relatively high level of public trust. But in the wake of the 2022 decision overturning the nation’s right to abortion — an opinion that was leaked even before its publication — public confidence fell to its lowest level in 50 years. There is also continued criticism of secret trips and gifts from wealthy benefactors to some judges. The Supreme Court adopted an ethics code last year, but it has no means to enforce it.
Alito, a former prosecutor appointed by President George W. Bush and confirmed in 2006, has been one of the court’s most conservative justices and authored the decision that overturned Roe v. Wade. During oral arguments in the election interference case against Trump, he appeared skeptical of the Justice Department’s arguments that former presidents are not completely immune from prosecution. of the participants in the January 6 riot.
Ethical guidelines generally make clear that judges should recuse themselves in cases where their spouses have financial interests, but the situation is less clear when spouses have a publicly known political position, said Arthur Hellman, professor emeritus at the University of Pittsburgh School. of the law. He pointed to a federal judge in California who refused to recuse himself from a gay marriage case in 2010, even though his wife was head of the American Civil Liberties Union there. Spouses’ finances are generally intertwined, but the idea that husbands and wives always share political views is outdated, he found.
Meanwhile, it remains unclear whether Alito was aware of the upside-down flag or its ties to Trump supporters at the time, said Stephen Gillers, a legal ethics expert at New York University School of Law. “I don’t believe Alito knew the flag was flying upside down, and if he did, I find it hard to believe he knew the relationship to ‘Stop the Steal,’” he said in an email.
According to the U.S. Flag Code, the U.S. flag may not be flown upside down except as a signal of dire distress or extreme danger. That meaning has made it a symbol of protest for decades, on both the left and the right. It became a symbol of Trump’s “Stop the Steal” campaign, as he spread false claims that the election he lost to Biden had been stolen.
Martha-Ann Alito hung the upside-down flag during a dust-up with a neighbor in Alexandria, Virginia, who had a lawn sign referring to Trump with an expletive at a bus stop during the “heated time” of January 2021, Fox News anchor Shannon Bream said in an online post, citing a conversation with Judge Alito. She became distraught after the neighbor used vulgar language and hung the flag “for a short period of time,” Bream wrote. Alito described some neighbors as “very political.”
Politics often overlap with everyday life, and no person can be completely free from personal opinions, says Charles Geyh, a law professor at Indiana University. But “a judge’s duty is to do what you can to keep them at bay. That means you shouldn’t proclaim your prejudices by hanging them on a flagpole,” he said.
The appearance of involvement in the political fight could contribute to growing distrust of the U.S. Supreme Court, which Geyh warned could have serious consequences.
But there is no mechanism for punishing justice, said Gabe Roth, executive director of Fix the Court, an advocacy group that pushes for legal ethics. Complaints against lower court judges are filed with the chief district judge, who appoints special committees of judges to investigate and report on the matter. “To me, the fact that such a protocol does not currently exist in the court is a real deficit,” he said.
Only Congress can remove a judge, said Michael Frisch, an ethics consultant at Georgetown Law. One justice, Abe Fortas, resigned from the Supreme Court in 1969 amid a controversy over the receipt of $20,000 from a Wall Street financier. However, impeachment has only occurred once, against Judge Samuel Chase in the early 1800s. He was later acquitted by the Senate.
__ Associated Press writer Nicholas Riccardi in Denver contributed to this report.