Justice Samuel Alito under fire for political flags flying on his properties

Supreme Court Justice Samuel Alito’s story about why a flag associated with the effort to overturn the 2020 presidential election results was flying at his home is falling apart under scrutiny.

The New York Times reported that Alito said his wife, Martha-Ann Alito, had been responsible for flying an upside-down American flag outside of their Virginia home. Upside-down flags had been carried by Donald Trump supporters as they rioted at the U.S. Capitol on Jan. 6, 2021. Trump supporters began flying the upside-down flag after the 2020 election as a symbol of their belief that it was stolen from Trump. 

Alito told the Times, which first reported the story, that Mrs. Alito had flown the flag on Jan. 17, 2021, after she got into a dispute with a neighbor over lawn signs. Alito later told Fox News that she flew the flag because she was upset after getting into a verbal argument with the neighbors over the lawn signs, one of whom he said called her “the C-word.”

However, the Times reported on May 28, the argument happened on Feb. 15, 2021, almost a full month after the flag was spotted at Alito’s home. The report was corroborated by text messages and a phone call to police. 

Alito has not provided an explanation for why a Christian nationalist “Appeal to Heaven” flag, also carried by insurrectionists at the Capitol, was flying outside of his New Jersey beach home.

Judicial ethics experts say the fact that the Alitos flew these two flags could violate Supreme Court rules that say justices “should refrain from political activity.”

“News that Justice Alito’s home prominently displayed an American flag in a way that seemed to express support for a presidential candidate only seems to prove that the widespread notion that the Court has low ethical standards is far from a misunderstanding,” the nonprofit Campaign Legal Center’s vice president and general counsel Kedric Payne wrote in a May 20 news release. “Most importantly, Justice Alito’s excuse for the partisan activity demonstrates that the Court’s begrudgingly adopted code of conduct will never alone build public trust in the institution because there is no enforcement mechanism.”

The revelations about the flags at the Alito residences raise questions about whether Alito can be impartial in cases related to the Capitol insurrection and former President Donald Trump’s role in it, cases that are before the Supreme Court. 

The Supreme Court is currently deliberating whether the Justice Department improperly charged insurrectionists with corruptly obstructing, influencing or impeding an official proceeding, as well as whether Trump is immune from facing criminal charges for acts he carried out while president. 

Senate Democrats have asked Chief Justice John Roberts to force Alito to recuse himself from these cases in light of the news about the flags.

“By displaying or permitting the display of prominent symbols of the ‘Stop the Steal’ campaign outside his homes, Justice Alito clearly created an appearance of impropriety in violation of the Code of Conduct for Justices of the Supreme Court of the United States (hereinafter Code of Conduct) that all nine justices adopted last year,” Sens. Dick Durbin (D-IL) and Sheldon Whitehouse (D-RI) said in a letter to Roberts dated May 23. “He also created reasonable doubt as to his impartiality in certain proceedings, thereby requiring his disqualification in those proceedings as established by the Code of Conduct and federal law.”

Alito, however, is refusing to recuse himself, writing in a May 29 response to Durbin and Whitehouse that he had nothing to do with the flags.

“My wife is fond of flying flags. I am not,” Alito wrote. “My wife was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.”

Democrats say the flag incident raises the stakes of the 2024 election. If Trump wins, he may have the opportunity to appoint more conservative judges to the Supreme Court. He has already appointed three of the court’s nine justices who joined the majority opinion that overturned Roe v. Wade and paved the way for state abortion bans across the country.

“Realistically here there is one point of accountability, and that is the election,” Ian Millhiser, a senior correspondent at Vox who has written two books on the Supreme Court, said in an interview on MSNBC. ” If Trump wins, there’s going to be many more Alitos on the courts, and potentially on the Supreme Court. And if Biden wins, then he has the opportunity to at least dilute Alito’s vote by appointing people who are very not like him.”