As Supreme Court term nears end, Alito's flags outside homes spark political backlash


WASHINGTON — Reports of two different flags being flown outside Justice Samuel Alito's homes have set off a political firestorm and reignited a focus on ethics practices at the Supreme Court, as Democrats advance legislation that would require the court to adopt a binding code of conduct and call on the justice to recuse himself from cases involving former President Donald Trump and the Jan. 6, 2021, Capitol attack.

Alito, his wife and two flags

Alito has been criticized following two New York Times reports revealing that an upside-down US flag was flown outside his Virginia home in mid-January 2021, and a flag with an “Appeal to Heaven” was displayed outside his vacation home in New Jersey in July and September 2023.

Both types of flags were carried by rioters who breached the U.S. Capitol Building on January 6, 2021, leading Democrats to condemn their presence outside Alito's homes.

“Appeal to Heaven” flag shown at left, January 6, 2021, US Capitol.

Government Exhibition


The justice told The New York Times that he “had no involvement whatsoever” in the flag being hoisted outside his Virginia home in early 2021 and explained in a statement to the Times that it was “briefly placed by Mrs. Alito in response to a neighbor's use of offensive and personally insulting language on yard signs.” The Supreme Court did not respond to a request for comment about the “Appeal to Heaven” flag.

The U.S. flag is used upside down to signal distress, and according to the U.S. Code, “it should never be flown face down, except as a signal of serious distress in case of extreme danger to life or property.”

The “Appeal to Heaven” flag, also known as the Pine Tree flag, is associated with the American Revolution and a symbol of resistance to British colonialism. According to a Congressional report published in 2006, the flag was often seen “at sea as the flag of a cruiser commissioned by General Washington.” The phrase “Appeal to Heaven” was used by 17th-century philosopher John Locke, who wrote in his Second Treatise that “where a body of people, or any individual, is deprived of their right, or is subjected to the exercise of power without authority, and has no appeal to earth, they are at liberty to appeal to Heaven, whenever they think the cause of sufficient importance.”

In recent years it has become associated with Christian nationalism.

Democrats call for Alito's recusation from Jan. 6, Trump immunity cases

Senate Judiciary Committee Chairman Dick Durbin of Illinois criticized Alito for the incidents and urged him to recuse himself from cases before the Supreme Court, including obstruction charges against the January 6 defendants, and whether former President Donald Trump should be protected from criminal prosecution based on presidential immunity.

“He cannot treat these political symbols casually without jeopardizing his own integrity,” said Durbin, a Democrat.

Durbin said he hoped the Senate would consider the bill. Advanced by Judiciary Panel A bill passed last year would require the Supreme Court to adopt a binding code of conduct and put in place procedures for handling claims of judicial misconduct.

He said, “It is time that the country's highest court should move away from this lowest standard of morality.”

Supreme Court code of conduct issuedAn ordinance signed by all nine serving judges was issued in November, but it does not include an enforcement mechanism.

Forty-five House Democrats have also asked Alito to recuse himself from cases related to the Jan. 6 attack or the 2020 election. They sent him a letter Tuesday saying that even if he had no involvement in the flag-waving, “the fact that such a political statement was made at your home creates at least the appearance of improper political bias.”

While Republicans have largely defended Alito, others have questioned allowing the display of the upside-down American flag.

“It's not the right decision to make,” South Carolinian Senator Lindsey Graham, the top Republican on the Judiciary Committee, told reporters earlier this week. “He said his wife was insulted and he got angry. I think that's true, but he's still a Supreme Court justice.”

Republican Sen. Thom Tillis of North Carolina said it was “probably silly” to have a flag with political meaning, but he noted that other members of the high court have held views he disagrees with.

“If we're being intellectually honest about this, we should look at every incident where there's some sort of political or ideological motivation,” he told reporters.

But Senate Minority Leader Mitch McConnell said the high court was under “constant assault.”

“We should leave the Supreme Court alone, and protect them from people who come into their neighborhoods and try to harm them,” the Kentucky Republican said.

Flag report emerges as Supreme Court prepares to issue politically charged ruling

According to the New York Times, the revelations about the flags to be displayed in January 2021 and the summer of 2023 come as the Supreme Court enters the final weeks of its term. The justices are set to deliver rulings on a number of politically charged issues, including abortion and guns. Their rulings in two other cases could also have significant implications for Trump.

The first case involves the obstruction law used to prosecute more than 350 defendants who allegedly took part in the January 6 attack. Trump was accused of violating that law, which makes it a crime to “corruptly” obstruct an official proceeding and to conspire to obstruct an official proceeding. He has pleaded not guilty to both counts.

If the Supreme Court limits the scope of the law and finds it cannot be applied to the January 6 attack, Trump could press for the dismissal of those two charges.

The second case involves whether he can be criminally prosecuted for his alleged actions during the 2020 election. Trump has argued that he enjoys broad immunity for official actions allegedly taken while in office, but Jack Smith, the special counsel who brought the case against the former president, has urged the Supreme Court to reject Trump's claims.

The justices heard arguments in both cases in April and voted behind closed doors shortly after. At this point in their term, the justices are working on their opinions, which will be announced publicly in the coming weeks. The Supreme Court term typically ends by the end of June.

It seems unlikely that Alito will recuse himself from cases involving Trump and January 6, but if he does and a 5-4 decision is made with his participation, the court will deadlock 4-4. In those cases, the lower court decisions will stand.

In the January 6 case, that would mean the ruling in favor of the Justice Department from the US Court of Appeals for the DC Circuit would stand. In the immunity case, a unanimous three-judge panel of DC Circuit judges rejected Trump's claim that he is broadly protected from federal prosecution.

If Alito rejects a call to recuse himself, he could choose to explain why, as he did in September. Democrats' demands rejected step aside The tax case was debated in DecemberAlito participated in the interview with Wall Street Journal editor and attorney David Rivkin, who is representing the couple involved in the tax case.

“There is no legitimate reason for my recusation in this case,” Alito wrote in a four-page statement that was included in the Supreme Court's regular list of orders.


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