Left FILE — Associate Justice Samuel Alito joins other members of the Supreme Court as they pose for a new group portrait (AP Photo/J. Scott Applewhite, File); Right: With the U.S. Capitol in the background, a demonstrator waves an upside-down American flag before a rally in Washington, Saturday, Sept. 18, 2021. (AP Photo/Jose Luis Magana).
A federal watchdog group has penned an open letter to U.S. Supreme Court Chief Justice John Roberts, demanding the creation of an “enforcement mechanism” for its otherwise toothless code of conduct amid the ongoing controversy over two flags flown at two different residences belonging to Justice Samuel Alito.
Earlier this month, Alito came under fire for an upside-down American flag seen flying at his house in late January 2021 — symbolism widely viewed as signaling agreement with Donald Trump’s false claims of fraud in the 2020 presidential election. Days later, it was reported that a second flag aligned with said movement was seen flying on multiple occasions at Alito’s vacation home as recently as September 2023.
On Friday, Citizens for Responsibility and Ethics in Washington sent a 5-page letter to Roberts, urging the chief justice to “take swift action to protect its independence and integrity” by instituting some way to mete out consequences for violations of the Code of Conduct for Justices, which was just recently enacted in November 2023.
On May 16, the legal and political establishment was rocked by a New York Times report about having obtained photos of an upside-down flag displayed at the Alito home on Jan. 17, 2021. President Joe Biden would be inaugurated three days later as the nation grappled with the still-fresh aftermath of the unprecedented Jan. 6 riot.
While unclear how long Old Glory was displayed upside-down outside the Alito residence, the paper reported reviewing an email sent on Jan. 18, 2021, from one of the Alitos’ neighbors to a relative indicating the flag had already been flown upside-down for several days.
Alito foisted the blame for the seemingly pro-conspiracy theory protest on his wife in a statement to the Times.
On May 22, the Times reported that the flagpole at the Alito vacation property was often home to the so-called “Appeal to Heaven” flag.
In the letter, CREW President Noah Bookbinder writes the second flag “was a symbol carried by insurrectionists on Jan. 6 and has been associated with a far-right religious sect of the ‘Stop the Steal’ movement which aims to remake our democratic government in Christian terms.”
More Law&Crime coverage: Prominent judicial advocacy group says Justice Alito ‘can’t be trusted with American democracy’ and calls for him to ‘recuse from any case related’ to Trump or Jan. 6
“While Justice and Mrs. Alito undoubtedly enjoy full protection of their First Amendment rights, that does not relieve Justice Alito of his ethical responsibilities,” the letter reads. “There is no question that the flying of a political flag at his home, regardless of who placed it there originally, suggests a lack of impartiality — or creates the appearance of the lack of impartiality — on the part of Justice Alito.”
The letter accuses Alito of violating at least three separate canons of the Supreme Court ethics code and says Roberts should personally talk to the alleged offender and insist that Alito recuse himself from “all cases related to January 6th and the 2020 election, and any future matters involving similar parties and issues.”
The missive also takes the high court itself to task for its own alleged knowledge of Alito’s flag-flying proclivities.
“Despite a clear obligation under the law and under the Code to recuse, there has so far been no indication from Justice Alito that he intends to do so,” the letter reads. “Furthermore, recent reporting indicates that the Court was put on notice of this problematic and political display at Justice Alito’s house, and yet did nothing about it. This lack of recognition of the need to respond to his misconduct by both the Court and Justice Alito demonstrates the need for immediate reforms to the Code in order to preserve the Court’s integrity and impartiality.”
The non-partisan group insists their demands on the chief justice are not coming out of the blue, but are, rather based on the process that gave rise to the Supreme Court’s ethics code itself.
“As an initial matter, the Court must amend the Code to create an enforcement mechanism to ensure judicial compliance with the Code’s ethical requirements, including creating an investigative process to conduct an inquiry into situations such as this,” the letter explains. “The commentary to the Code contemplates as much, stating that the Court ‘will assess whether it needs additional resources in its Clerk’s Office or Office of Legal Counsel to perform initial and ongoing review of recusal and other ethics issues.””
The letter casts the flag controversy in dire terms.
“By allowing these political displays at his homes, Justice Alito harmed our democracy by explicitly mixing politics and judicial decision-making,” the letter concludes. “This is a crisis of democracy. We urge you to preserve the integrity of the Court by creating prophylactic enforcement mechanisms that will strengthen the Code the Court promulgated last November. We fear that if the Court fails to act, the integrity of this institution that we all revere will be beyond saving.”
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