Display at Alito’s home renews questions of Supreme Court’s impartiality

FILE — Justice Samuel Alito at a formal portrait for Supreme Court justices, in Washington, on Friday, Oct. 7, 2022. An upside-down flag, adopted by Trump supporters contesting the Biden victory, flew over the justice’s front lawn as the Supreme Court was considering an election case. (Erin Schaff/The New York Times)

News of a “Stop the Steal” symbol that flew at the home of Justice Samuel Alito after the 2020 election has elicited concerns from politicians, legal scholars and others about the Supreme Court’s ethical standards — and, most urgent, whether the public will regard its rulings about Jan. 6, 2021, as fairly decided.

In coming weeks, the Supreme Court is expected to issue two key decisions involving the storming of the Capitol on that day. The cases will shape the degree to which former President Donald Trump can be held accountable for his efforts to subvert the 2020 election.


“These cases were always going to be seen through an ideological and partisan lens,” Michael C. Dorf, a Cornell law professor and former clerk to Justice Anthony Kennedy, said in an interview. “The fact that you’ve got two justices who are strongly identified not just with the Republican Party or the conservative movement but the ‘Stop the Steal’ movement raises that to another level.” Justice Clarence Thomas’ wife, Virginia Thomas, was directly involved in efforts to overturn the election.

An upside-down flag, a popular symbol with Trump supporters contesting President Joe Biden’s victory, appeared on Alito’s front lawn in January 2021, The New York Times reported based on photographs and interviews with neighbors. It hung on the Alitos’ flagpole days before the inauguration, a little over a week after the Capitol riot and while the Supreme Court was considering taking up an election case.

Alito acknowledged the flag in a statement to the Times, saying that it was part of a dispute that his wife, Martha-Ann Alito, had with neighbors and that he had “no involvement whatsoever.”

In an interview with Fox News on Friday, Alito said his wife put up the flag after a neighbor down the street posted an anti-Trump sign with an expletive near a school bus stop. After his wife spoke with the neighbors about the sign, the neighbors put up another that blamed her for Jan. 6, the justice told Fox. Following an argument with those neighbors during a stroll, Martha-Ann Alito put up the flag in response, he said.

But jurists and legal scholars said the display was a violation of judicial ethics, including the Supreme Court’s own guidelines, which emphasize the need to remain politically independent.

“I have long said that Supreme Court justices, their spouses and their families should conduct themselves in all ways and at all times such that they are beyond reproach,” J. Michael Luttig, a prominent conservative and former U.S. Court of Appeals judge appointed by President George H.W. Bush who opposed efforts to overturn the 2020 election results, said in an interview. He added that maintaining respect was “indispensable to the public’s acceptance of the court’s judgments.”

The news of the inverted flag ignited responses from political leaders across the left. Several called on the justice to step aside from cases involving the attack on the Capitol.

“Flying an upside-down American flag — a symbol of the so-called Stop the Steal movement — clearly creates the appearance of bias,” Sen. Dick Durbin, D-Ill., the chair of the Judiciary Committee, said in a statement Friday. “Justice Alito should recuse himself immediately from cases related to the 2020 election and the Jan. 6 insurrection.”

The senator also renewed a push for legislation that would require Supreme Court justices to adopt a binding code of conduct, create a procedure to investigate allegations of ethical violations and increase disclosure requirements for potential conflicts of interest.

Alex Aronson, executive director of Court Accountability, a judicial reform group, urged Durbin and others to move more aggressively. “Congress needs to stop shirking its constitutional duty as a coequal branch, and a hearing into this egregious breach by a sitting Supreme Court justice should already be scheduled,” he said in an interview, calling on Durbin to “investigate how this happened.”

But, as with other recent court controversies, reaction fractured along partisan lines, with some conservatives and Trump supporters dismissing the flag incident as little more than a neighborhood scuffle.

Several Republican senators on the Judiciary Committee did not respond to requests for comment, including Sen. Mike Lee of Utah, who clerked for Alito twice. But on Friday afternoon, Lee expressed support for the Alitos on social platform X, writing, “Justice Alito and his family have been relentlessly harassed by leftists.”

“Whatever happened with the flag, and whatever the reason, it is clearly a lapse in judgment,” Jonathan H. Adler, a law professor at Case Western Reserve University, said in an interview. “But I have not seen a serious argument for why Justice Alito would need to recuse in a specific case.” He pointed out that in 2016, after Justice Ruth Bader Ginsburg made disparaging comments about Trump, she declined to recuse herself from a case about his campaign in Ohio.

Thomas’ wife, a conservative activist, has also faced public scrutiny in recent years over her efforts to upend the 2020 election results, including texting the White House chief of staff, Mark Meadows, to urge him to back Trump’s claims of widespread voter fraud. She has said that she attended the Jan. 6 rally that preceded the attack on the Capitol but did not participate in the riot.

Thomas has not recused himself from the Jan. 6 cases before the court, with the exception of an appeal to the court by his former law clerk and friend, an architect of a plan to subvert the election, John Eastman. The court turned down Eastman’s appeal, and Thomas gave no reason for his request for recusal.

Oral arguments in the Jan. 6 cases were held in the spring, and the court’s rulings are expected by the end of June. Until then, it will not be known what role Alito and Thomas will play in the authorship of the decisions.

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