WASHINGTON – An upside-down American flag, a symbol associated with former President Donald Trump’s false claims of election fraud, was displayed outside the home of Supreme Court Justice Samuel Alito in January 2021, The New York Times reported.
A photo obtained and published by the newspaper on Thursday shows the flag flying on Jan. 17, 2021, days after the Republican's supporters stormed the U.S. Capitol on Jan. 6, 2021, to try to prevent certification of Democrat Joe Biden's presidential election victory. Dozens of the pro-Trump rioters were carrying similarly inverted flags and chanting slogans like “Stop the Steal.”
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The report could raise concerns about Alito’s impartiality as the court considers two major cases related to the Capitol attack, including charges faced by the rioters and whether Trump has immunity from prosecution on election interference charges. The justice said the flag was placed there by his wife amid a dispute with neighbors.
Democratic Sen. Dick Durbin of Illinois, chair of the Senate Judiciary Committee, called on Alito to recuse himself Friday from cases related to the 2020 election and the Jan. 6 Capitol insurrection.
“Flying an upside-down American flag — a symbol of the so-called ‘Stop the Steal’ movement — clearly creates the appearance of bias," Durbin said in a statement.
Republican Sen. Tom Cotton of Arkansas, meanwhile, called the report an attempt to “intimidate justices,” in a social-media post.
It comes as another conservative justice, Clarence Thomas, has ignored calls to recuse himself from cases related to the 2020 election over his wife, Ginni Thomas’, support for Trump and as public trust in the Supreme Court is at its lowest point in at least 50 years. Judicial experts said the flag clearly violates ethics rules set to avoid even the appearance of bias.
At the time the flag was flying, the court was still considering whether to take up cases over the 2020 election. It ultimately rejected them over dissent from three conservative justices, including Alito, who was appointed by President George W. Bush, a Republican. He wrote that the court’s consideration of the cases would have no impact on the 2020 election but “would provide invaluable guidance for future elections.”
Alito acknowledged the presence of the flag at his home in Alexandria, Virginia, but said he 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,” Alito said in an emailed statement to the newspaper.
Martha-Ann Alito had been in a dispute with another family in the neighborhood over an anti-Trump sign on their lawn, and neighbors also interpreted the flag as a political statement, the Times reported. It's unclear how long the flag was flying.
Judicial ethics codes focus on the need for judges to be independent, avoiding political statements or opinions on matters they could be called on to decide. The Supreme Court had long gone without its own code of ethics, but it adopted one in November 2023 in the face of sustained criticism over undisclosed trips and gifts from wealthy benefactors to some justices. The code lacks a means of enforcement, however.
Amanda Frost, a law professor at the University of Virginia, told the newspaper that flying the flag upside down is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases."
Even if it was placed by his spouse or someone else living in the home, “he shouldn’t have it in his yard as his message to the world,” she said.
The Supreme Court has warned its employees about public displays indicating partisan leanings, the newspaper reported. The court did not respond to questions about whether those rules apply to justices.
The U.S. Flag Code states that the American flag is not to be flown upside down “except as a signal of dire distress in instance of extreme danger to life or property.” It has been used as a protest symbol on both the left and the right on a range of issues over the decades. It took off as a symbol of Trump's “Stop the Steal” campaign as he spread false claims that the election he lost to Biden had been stolen.