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U.S. Supreme Court Justice Samuel Alito is facing steep criticism, including calls for his removal from the bench, after a new report detailed how a U.S. flag flew upside-down in front of his home days after the January 6, 2021, attack on the Capitol by a mob of loyalists to former President Donald Trump.
According to U.S. flag code, the flying of the flag in such a manner is “a signal of dire distress.” However, in recent years it has come to symbolize deep dissatisfaction with a political outcome — during that time specifically, it was used by Trump loyalists to express their opposition to the outcome of the 2020 presidential election, which was won by President Joe Biden. Indeed, upside-down flags were prevalent during the Capitol attack itself, and social media posts from Trump supporters in January 2021 encouraged others to hang their flags upside-down to symbolize their continued support for the then-outgoing president and his false claims of election fraud.
According to a report from The New York Times, Alito’s home had an upside-down flag flying during this time, too.
According to neighbors’ accounts, the flag flew for a few days. Images of the flag obtained by the Times show that it was flying on January 17, 2021, just 11 days after the Capitol attack, and just four days after the House voted to impeach Trump for his role in instigating the chaos.
The flag wasn’t reported on until now due in large part to Alito’s neighbors’ fears of “add[ing] to the contentiousness” in the neighborhood and potential “reprisals” against them, the Times noted.
The appearance of such a charged political symbol in front of a jurist’s home is highly unethical. Amanda Frost, a law professor at the University of Virginia, told the Times that a flag displayed in that manner was “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases.”
The Supreme Court had considered a number of such cases, and had just decided against hearing another challenge when the flag was flying. Alito dissented in that case, maintaining that the Court should have heard the challenge.
For any other federal judge, ethics rules could require a misconduct review for the flagrant display of a political symbol. But the Supreme Court has no mechanism in place to force such a review.
In a statement emailed to the Times regarding the upside-down flag, Alito blamed his wife, Martha-Ann Alito, claiming she had flown it in response to a neighborhood dispute.
“I 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.
The dispute in question had to do with signage from a neighbor critical of Trump that used an expletive in its wording. It’s unclear how flying a flag upside-down, without any added context on or near the flagpole, could convey disagreements with such signage.
Numerous political and legal experts weighed in on the controversy, noting that Alito’s excuse was insufficient.
In response to Alito’s comments, former U.S. Attorney and current University of Alabama law school professor Joyce Vance opined:
Justice Alito blamed his wife when asked [about the flag]. As though a sitting Supreme Court Justice, upon pulling up to his home and seeing the flag, wouldn’t immediately take it down and say, ‘Honey, I understand your feelings, but as a Justice on the United States Supreme Court, I must avoid even the appearance of impropriety, and that flag conveys a political sentiment that is an affront to the rule of law I’m sworn to uphold, especially after rioters carrying it swarmed the Capitol a week and a half ago.’
MSNBC host Rachel Maddow described the flag hanging outside Alito’s home in the days after January 6 as “unsettling” and “gross,” and suggested that Chief Justice John Roberts take action against his colleague.
“I’ve never heard anything like this in the entire history of every controversy I’ve ever known about with the United States Supreme Court,” Maddow added.
Ruth Ben-Ghiat, a history professor at NYU and expert on facism and authoritarianism, took the criticism further, stating that Alito should be removed from the Court over these and other ethics concerns, including his and fellow Justice Clarence Thomas’s acceptance of extravagant gifts over the years from far right benefactors.
“Clean up the Court. Thomas and Alito must go,” Ben-Ghiat said on the social media platform X. “They are far-right activists masquerading as impartial justices.”
Other commentators agreed with her assessment.
“Justice Alito should be impeached and removed!!” wrote progressive political commentator Dean Obeidallah. “If a liberal justice flew a flag in support of a coup attempt waged by a Democratic President, the House GOP would immediately impeach him! “
Norman Ornstein, emeritus scholar at the center-right American Enterprise Institute, also supported initiating hearings to consider removing Alito from the High Court.
“It is time for a House member to introduce an impeachment resolution against Sam Alito,” Ornstein said. “He has openly and blatantly violated every standard we expect for any judge, not to mention the Supreme Court.”
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