As you’ve probably heard by now, for several days before Joe Biden was inaugurated in 2021, an upside-down flag—which had become synonymous with election denialism and the “Stop the Steal” movement, and had been brandished by some of the people responsible for the Capitol attack earlier that month—flew outside the home of Supreme Court justice Samuel Alito. Given the meaning behind the upside-down flag, this would have been a bold political statement for anyone to make. But Alito is not just anyone—he’s a member of the highest court in the country, where justices are supposed to do everything they can not to appear biased. And at the time the flag was flying, the Court was deciding if it should hear Donald Trump’s case trying to overturn the election (it didn’t, but not for Alito’s lack of trying.)
Obviously, this was an outrageous thing for the conservative justice to do, as well as a flagrant violation of ethics rules set by SCOTUS, according to court experts. The flag display, University of Virginia law professor Amanda Frost told The New York Times, was “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases.”
And as Alito has made clear, he doesn’t give a f–k.
“I had no involvement whatsoever in the flying of the flag,” Alito said in a statement to the Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
There are many issues with Alito’s response, including but not limited to the fact that:
- While he might not have flown the flag himself, he had no problem living inside a house that had it displayed outside
- “Briefly” would suggest, say, hours, yet the flag was reportedly up for days
- His neighbor is not married to a Supreme Court justice, and Alito’s wife is
- Putting up a yard sign projecting a distaste for Trump, as the neighbor reportedly did, is not equivalent to displaying a symbol embraced by a movement trying to overturn the results of a free and fair election
- As the Times’ Michael Barbaro writes, “Alito doesn’t deny the flag was flying upside down, doesn’t deny its meaning, doesn’t express any disapproval for it and doesn’t disavow it.”
That Alito doesn’t disavow the flag even now is hugely disturbing, and even more so because the Court is set to rule on a pair of cases involving January 6 and whether Trump can be held accountable. While there have already been calls for the justice to recuse himself, that is quite obviously not going to happen. And despite the clear violation of the Court’s ethics rules, no one is going to make Alito recuse himself. If Alito were on a lower court, former federal judge Jeremy Fogel told the Times, the flag display could lead to a review to determine any misconduct. But because the Supreme Court “serves as the arbiter of its own behavior, ‘you don’t really have anywhere to take it.’”
Incidentally, Alito is not the first justice whose spouse’s actions have led to calls for recusal (or even impeachment); the longest-serving current justice, Clarence Thomas, happens to be married to someone who thought nothing of going to extreme lengths to overturn the election.
Of course, Alito’s biases were obvious well before the flag incident came to light.
Last month, during oral arguments for and against Trump’s claims of absolute presidential immunity, the conservative justice suggested that in order to protect democracy, presidents must be allowed to commit crimes without fear of consequences. If and when he rules favorably for the ex-president, no one will be surprised. But it would be nice if he would just come out and admit what everyone knows: that he’s in the can for Trump.
