Justice Alito flew upside down flag outside home, according to reports

An upside-down American flag is a symbol connected with false claims that the 2020 election was stolen from former President Donald Trump.


WASHINGTON − An upside-down American flag – a symbol connected with false claims that the 2020 election was stolen from former President Donald Trump − flew at the home of Supreme Court Justice Samuel Alito after the election, the New York Times reported Thursday.

The news came as the high court is deciding two cases related to the attempts by Trump and his supporters to overturn the results of the election, decisions that will affect the criminal election interference charges pending against Trump. Supreme Court justices are supposed to avoid politics.

In a statement to The New York Times, Alito 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,” he told the Times, referring to his wife Martha-Ann Alito.

Inverted flags, a sign of distress, have been used by Trump supporters, particularly those protesting the 2020 election.

Kathleen Clark, a legal ethics expert at Washington University in St. Louis, who emphasized that she’s not an authority on the significance of an upside-down flag, said justices are not supposed to publicly display support or opposition to partisan political candidates.

“If it means `Stop the Steal,’ then it seems like he didn’t mind that ideological message going out to the world,” she said of the flag. “That’s political activity, arguably.”

Calls for recusal

There have already been calls for Justice Clarence Thomas to recuse himself from those decisions because of his wife’s political advocacy.

Virginia “Ginni” Thomas has argued repeatedly the 2020 election was stolen and attended Trump’s “Stop the Steal” rally on Jan. 6, 2021.

Related: Amid blowback over Clarence Thomas travel, Supreme Court says it will adopt first-ever code of conduct

Stephen Gillers, a judicial ethics expert at New York University’s law school, told USA TODAY he doubts Alito knew the flag was flying upside down or, if he did know, wasn’t aware of the “Stop the Steal” connection.

“I don’t believe Alito would have allowed this to happen if he did know,” Gillers said. “While Alito’s explanation for how it did happen is hard to believe, it is more credible than the view that he knowingly chose to fly the flag upside down knowing its meaning to the “Stop the Steal” crowd.”

Alicia Bannon, director of the judiciary program at the Brennan Center for Justice, a liberal group, said a reasonable person could question Alito’s impartiality in the pending cases related to Jan. 6, 2021, and the charges Trump faces.

Alito, she tweeted, should recuse himself from those cases.

But both Bannon and Clark noted that the code of conduct the court adopted last year in response to ethics controversies does not include an enforcement mechanism.

“It’s an acknowledgment that he needs to do something,” Clark said, “but it failed to do the most important thing which is provide a mechanism for accountability.”

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