The story is well known by now: Throngs of former president Donald Trump’s most ardent supporters attacked the Capitol on Jan. 6, 2021, smashing their way through police barriers with riot gear, bear spray and makeshift weapons in an attempt to halt the certification of the presidential election Trump lost.
In the days, weeks and months that followed, important information was unearthed about those who planned the riot, their motivation and attempts or lack thereof by Trump to halt the violence. But what was not known until earlier this week is that mere days after the attack, an upside-down American flag flew from a pole in the front yard of the home of the Supreme Court’s most stalwart conservative, Justice Samuel Alito.
The upside-down flag had become a symbol proudly displayed by Trump supporters, including those who stormed the Capitol, who believed falsely that President Joe Biden stole the 2020 election. As first reported by The New York Times, the upside-down flag flapped in the breeze on Jan. 17, 2021, at Alito’s Alexandria, Virginia, home – just three days ahead of Biden’s inauguration.
The incident is just the latest in a long line of questionable decisions and ethics violations by Supreme Court justices that have come to light over the last year, and comes as the high court is considering a major decision related to Trump’s attempts to interfere with the election, including for his role with the attack on the Capitol.
“It’s important to have the public perceive and understand the court to be an apolitical and neutral actor and when there is not a code of ethics to guide judicial behavior on that front,” says Bertrall Ross, law professor at the University of Virginia and director of the Karsh Center for Law and Democracy. “It raises all kinds of problems and dilemmas, and this is just the latest example.”
The upside-down flag, he says, “is ultimately a symbol suggesting that a fundamental institution of our democracy is somehow rigged, broken and manipulated.”
And, he adds, “to have a symbol like that on a justice’s home is quite troubling, especially given the partisan orientation of the notion that the election was rigged and the lack of any evidence to support the assertion that the election was rigged.”
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During oral arguments last month, Alito appeared to be the most sympathetic of all the conservative justices to Trump’s appeal. Among other things, Alito asserted that without immunity, presidents would be subjected to prosecution by political rivals after they leave office, cementing a vicious cycle of attacks against future presidents that would have a chilling effect on their ability to fulfill the duties of the presidency.
To be sure, the details surrounding the photo are still becoming known, chief among them: Did Alito know about the flag, and was he home while it was flying? At the time of publication of this story, neither Alito or any other justice had commented on the incident.
“Irrespective of those additional facts, it’s just a troubling symbol and troubling association of that symbol with a justice of the Supreme Court who is going to be of course ruling on cases that involve the propagator of that idea that the election was rigged,” says Ross. “I don’t even know what to say about that. That just puts the court, the justices and this case on precarious grounds – at least from the perspective of the public seeing this as a case decided by neutral people.”
In November, all nine justices signed a new code of conduct, which mirrors the code of conduct for federal judges. But critics slammed what they characterized as a PR stunt for their failure to provide any enforcement mechanism. Under the new code, justices should “uphold the integrity and independence of the judiciary,” “avoid impropriety and the appearance of impropriety in all activities,” and “refrain from political activity,” including by publicly endorsing or opposing a candidate for public office.
“It’s a clear violation of ethics,” says Gabe Roth, executive director of Fix the Court, which advocates for increased accountability in the judicial system. “Alito has flouted judicial ethics in the past, but this is an escalation. This is beyond the pale. Symbolism means something for a reason and an upside-down flag flown in January 2021 means something very specific. It’s upsetting to see another ethical misstep by the high court.”
For Charles Geyh, law professor at Indiana University who studies judicial conduct and ethics, a more accountable court relies on the U.S. Senate and its ability to properly vet future Supreme Court nominees. They must ask tough questions, he says, about how they view the role of a judge in increasingly partisan times, about the repercussions for ethics violations and, as it relates specifically to Alito, about their views on flying partisan flags in opposition to a presidential candidate or in support of another.
“Step back for a second and say, ‘Look on the one hand, everyone has their opinions. Alito’s entitled to them. Everyone has their biases,’” Geyh says. “To be so naive to assume that judges don’t have them either is just kind of foolish. On the other hand, a good judge struggles against their biases. A good judge is doing everything they can to avoid the perception that they are less than open-minded.”
“One way you avoid it is you don’t trumpet your biases from flying a flag with them on it,” he says.
With the build-up of the ethics controversies, the Supreme Court is flirting with further discrediting itself at a time when American trust and confidence in the high court is already the lowest in history. And the consequences of the judiciary becoming openly partisan and political is real: Just last week 13 conservative judges told the president of Columbia University that they won’t hire future graduates of Columbia Law School as judicial law clerks due to its handling of pro-Palestinian protests.
“The public is perceiving the decisions the court is making as driven by an ideological agenda rather than by the law,” says Geyh. “Historically, even decisions with which they’ve disagreed, they were not predisposed to say, ‘Yeah well that’s just garbage.’ They disagreed, but they respected the court’s authority. We are seeing a decline in that and it’s directly attributable to the perception that the court is increasingly partisan.”