The flag toppled at the home of Justice Alito, another blow for the Supreme Court under fire

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WASHINGTON — An upside-down American flag has long been a sign of extreme distress and a versatile symbol of protest. But in January 2021, when it flew over the home of Supreme Court Justice Samuel Alito, it was widely seen in connection with a specific cause: the false claim by supporters of then-President Donald Trump that the 2020 elections were marred by fraud.

The revelation this week about the flag flying at Alito’s home was the latest blow to a Supreme Court that was already under fire as it considers unprecedented cases against Trump and some of those charged with rioting in US Capitol on January 6, 2021.

Alito said the flag was briefly flown by his wife amid an argument with neighbors and that he did not participate. But the incident reported by The New York Times adds to concerns about an institution increasingly seen as partisan and lacking strict ethical guidelines.

The high court now faces questions about whether the spouses of two of its members are questioning the legitimacy of the 2020 election and whether those justices should hear cases related to the Jan. 6 riots and Trump’s role in them. this. Justice Clarence Thomas, appointed by President George HW Bush, faced calls for recusal after reports that his wife Virginia Thomas was involved in efforts to overturn President Joe Biden’s 2020 election victory.

RELATED: Justice Alito’s house flew an upside-down flag after Trump’s ‘Stop the Steal’ claims, report says

“We’re talking about a core American value of the peaceful transfer of power and elections,” said Tony Carrk, executive director of Accountable.US, a progressive watchdog organization. “It’s just about the integrity of the democratic process.”

Several Democrats in Congress, including Senate Judiciary Chairman Dick Durbin and House Minority Leader Hakeem Jeffries, have called on Alito to recuse himself from Trump-related cases. Judges can and do voluntarily recuse themselves, but these are their own individual appeals and are not subject to review.

There was no indication that Alito would do so. He did not respond to a request for comment sent by the court’s public information office.

Although the Supreme Court has long lacked its own ethics code, its institutional reputation for remaining above the political fray has long helped bolster its relatively high levels of public trust. But following the 2022 ruling overturning the nation’s right to abortion — an opinion that was leaked before its release — public trust has plummeted to its lowest level in 50 years. There has also been sustained criticism regarding undisclosed travel and gifts from wealthy benefactors to some judges. The High Court adopted a code of ethics last year, but lacks the means to enforce it.


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Alito, a former prosecutor appointed by President George W. Bush and confirmed in 2006, was one of the Court’s most conservative justices and authored the decision overturning Roe v. Wade. During oral arguments in the election interference case against Trump, he was skeptical of the Justice Department’s arguments that former presidents are not completely immune from prosecution, and seemed one judges most likely to find that prosecutors went too far in bringing obstruction charges against hundreds of people. participants in the January 6 riot.

Ethical guidelines generally make it clear that judges should recuse themselves in cases where their spouses have financial interests, but the situation is less clear when spouses have a publicly known political viewpoint, said Arthur Hellman, professor emeritus at school at the University of Pittsburgh. of the law. He pointed to a federal judge in California who refused to recuse himself from a 2011 same-sex marriage case, even though his wife was the head of the American Civil Liberties Union there. Spouses’ finances are usually linked, but the idea that wives and husbands always share political views is outdated, he found.

Meanwhile, it remains unclear whether Alito knew about the inverted flag at the time or his ties to Trump supporters, said Stephen Gillers, an expert in judicial ethics at the University of Law School. New York. “I don’t believe Alito knew the flag was flying upside down or if he did, I find it hard to believe he knew the connection to ‘Stop the Steal,'” he said. he said in an email.

Flags were used as a means of communication at sea centuries ago, and sailors hung them upside down as a sign of extreme distress, said Marc Leepson, author of “Flag: An American Biography.”

More recently, anti-Vietnam War protesters used the symbol to denounce their government’s actions, he said. Some put upside down postage stamps on their letters to express their opinions about the war.

The inverted flag has also been flown by anti-government extremists and white nationalists who have used it as a signal of a broken nation, said Jeff Tischauser, senior research analyst at the Southern Poverty Law Center’s Intelligence Project.

“It’s one thing to go to a rally and see a Patriot group wearing it. It’s another thing for me to drive past a Supreme Court justice’s house and see it,” he said.

Martha-Ann Alito hung the flag upside down during an altercation with a neighbor in Alexandria, Virginia, who had a lawn sign referring to Trump with an expletive near a bus stop during the ” hot period” of January 2021, Fox” news anchor Shannon Bream said in an online article, citing a conversation with Justice Alito. Upset after the neighbor blamed her on Jan. 6 and used vulgar language, she hung the flag “for a short time,” Bream wrote, saying Alito had described some neighbors as “very political.”

Politics often intrude into daily life, and no human being can be completely free from their personal opinions, said Charles Geyh, a law professor at Indiana University. But “the duty of a judge is to do everything in his power to keep them at bay. It means you don’t assert your biases by presenting them on a flagpole,” he said.

Appearing to enter the political fray may contribute to growing distrust of the U.S. Supreme Court, which Geyh says could have disastrous consequences.

Requests for recusals from judges and justices are part of political disputes within the High Court and elsewhere in the justice system. Thomas has rejected calls from Democrats for him to recuse himself from Trump-related cases. Meanwhile, some Republicans have asked New York Judge Juan Merchan to recuse himself from Trump’s secret trial because he has made small donations to Democrats and his daughter is a party consultant. He refused, in a decision backed by a state ethics committee.

But while there is a system to penalize lower court judges accused of conflicts or other wrongdoing, there is no mechanism to punish Supreme Court judges.

“To me, the fact that such a protocol does not currently exist in court is a real deficit,” said Gabe Roth, executive director of Fix the Court, an advocacy group that advocates for judicial ethics.

Only Congress can impeach a Supreme Court justice, said Michael Frisch, an ethics counsel at Georgetown Law. One justice, Abe Fortas, resigned from the Supreme Court in 1969 amid controversy over obtaining $20,000 from a Wall Street financier. Impeachment, however, occurred only once, against Judge Samuel Chase in the early 1800s. He was later acquitted by the Senate.

Lindsay Whitehurst and Gary Fields report for the Associated Press.

Associated Press writers Nicholas Riccardi in Denver, Ali Swenson in New York and Lisa Mascaro in Washington contributed to this report.