Left FILE – Associate Justice Samuel Alito joins other members of the Supreme Court as they pose for a new group portrait, at the Supreme Court building in Washington, Oct. 7, 2022. (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. The rally was planned by allies of former President Donald Trump and aimed at supporting the so-called “political prisoners” of the Jan. 6 insurrection at the U.S. Capitol. (AP Photo/Jose Luis Magana)
The legal community is reeling from reports that U.S. Supreme Court Justice Samuel Alito said his wife was responsible for placing an upside-down flag — a move widely seen as signaling agreement with unsupported claims of fraud in the 2020 presidential election — on the couple’s front lawn in Alexandria, Virginia, days after the insurrection at the U.S. Capitol on Jan. 6, 2021.
It’s hard to not get numb to SCOTUS ethics scandals, but this one is really jaw dropping. Judicial ethics 101 is to avoid even an appearance of bias … but w/ a toothless code of conduct there will be no ethics investigation or consequences.
— Alicia Bannon (@alicia_bannon) May 16, 2024
The New York Times reported Thursday that it 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 aftermath of Donald Trump supporters waging a violent attempt to thwart the process behind the peaceful transition of power.
The timing of the flag display is especially problematic. On Jan. 17, 2021, the Supreme Court was considering a case about the 2020 election as well as two cases about the insurrection, including one about Trump’s immunity from legal action. About a month later, the Supreme Court would go on to reject the cases over a dissent written by Justice Clarence Thomas.
According to the Times, it is unclear how long the flag was displayed outside the Alito residence. However, the Times reported that it reviewed an email sent on Jan. 18, 2021, from one of the Alitos’ neighbors to a relative indicating that the flag had already been flown upside down for several days.
The Times also reported a statement from Alito himself in which he said, “I had no involvement whatsoever in the flying of the flag.”
“It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs,” the justice elaborated.
The justice and his wife, former law librarian Martha-Ann Alito, have been married since 1985 and have two children together.
The Nation’s Elie Mystal noted the justice’s willingness to explain his wife’s involvement in the incident.
“Always gotta love when ‘strong manly republicans for personal responsibility’ throw their wives under the bus at the first available moment,” Mystal posted on X.
Always gotta love when “strong manly republicans for personal responsibility” throw their wives under the bus at the first available moment.
— Elie Mystal (@ElieNYC) May 16, 2024
Under the U.S. Flag code, the American flag should not be flown upside down “except as a signal of dire distress in instance of extreme danger to life or property.” However, upside-down American flags have long been used as protest symbols for various reasons. Following Joe Biden’s election in November of 2020, upside-down flags were displayed by many Trump supporters as part of what they dubbed the “Stop the Steal” movement aimed at preventing Biden from taking office.
“It’s hard to not get numb to SCOTUS ethics scandals, but this one is really jaw dropping,” Alicia Bannon, the director of NYU Law School’s judiciary program, noted on X (formerly Twitter).” Judicial ethics 101 is to avoid even an appearance of bias … but w/ a toothless code of conduct there will be no ethics investigation or consequences.”
The “toothless code of conduct” to which Bannon referred is the Supreme Court Code of Ethics, which was adopted in November 2023. All nine justices signed on to the code, but it conspicuously lacked any enforcement mechanism and was thereafter widely criticized for lacking power to achieve meaningful change.
Martha-Ann Alito would not be the only Supreme spouse involved in pro-Trump activities after Joe Biden won the 2020 election. Ginni Thomas, wife of Clarence Thomas, has been implicated in many, many aspects of what became known as “Stop the Steal.”
Judges at all levels are expected to refrain from making public political statements as well as from speaking out about cases likely to come before them.
The late justice Ruth Bader Ginsburg addressed the need for Supreme Court justices to refrain from public comments in an interview with CNN in July 2016. Ginsburg had been responding to then-candidate Trump’s public comments saying that the justice’s “Mind is Shot” and urging her to retire from the Supreme Court. In the interview, Ginsburg said about Trump, “He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego.”
Days later, Ginsburg rethought her commentary on Trump and released a statement saying the comments had been “ill-advised” and that the justice regretted making them.
“Judges should avoid commenting on a candidate for public office,” Ginsburg said, “In the future I will be more circumspect.”
Justice Alito himself has also been criticized for alleged ethics violations, including his refusal to recuse himself in a case about wealth tax, and his taking a luxury fishing vacation with a billionaire who had a case before the Court.
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