After the 2020 presidential election, as some Trump supporters falsely claimed that President Joe Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American flag.
One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel Alito, in Alexandria, Virginia, according to photographs and interviews with neighbors.
The upside-down flag was aloft on Jan. 17, 2021, the images showed. President Donald Trump’s supporters, including some brandishing the same symbol, had rioted at the Capitol a little over a week before. Biden’s inauguration was three days away. Alarmed neighbors snapped photographs, some of which were recently obtained by The New York Times. Word of the flag filtered back to the court, people who worked there said in interviews.
While the flag was up, the court was still contending with whether to hear a 2020 election case, with Alito on the losing end of that decision. In coming weeks, the justices will rule on two climactic cases involving the storming of the Capitol on Jan. 6, including whether Trump has immunity for his actions. Their decisions will shape how accountable he can be held for trying to overturn the last presidential election and his chances for reelection in the upcoming one.
“I had no involvement whatsoever in the flying of the flag,” Alito said in an emailed statement to the Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Alito’s impartiality in cases related to the election and the Capitol riot.
The mere impression of political opinion can be a problem, the ethics experts said. “It might be his spouse or someone else living in his home, but he shouldn’t have it in his yard as his message to the world,” said Amanda Frost, a law professor at the University of Virginia.
This is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases,” she said.
Interviews show that the justice’s wife, Martha-Ann Alito, had been in a dispute with another family on the block over an anti-Trump sign on their lawn, but given the timing and the starkness of the symbol, neighbors interpreted the inverted flag as a political statement by the couple.
The long-standing ethics code for the lower courts, as well as the recent one adopted by the Supreme Court, stresses the need for judges to remain independent and avoid political statements or opinions on matters that could come before them.
“You always want to be proactive about the appearance of impartiality,” Jeremy Fogel, a former federal judge and the director of the Berkeley Judicial Institute, said in an interview. “The best practice would be to make sure that nothing like that is in front of your house.”
The court has also repeatedly warned its own employees against public displays of partisan views, according to guidelines circulated to the staff and reviewed by the Times. Displaying signs or bumper stickers is not permitted, according to the court’s internal rule book and a 2022 memo reiterating the ban on political activity.
Asked if these rules also apply to justices, the court declined to respond.
The exact duration that the flag flew outside the Alito residence is unclear. In an email from Jan. 18, 2021, reviewed by the Times, a neighbor wrote to a relative that the flag had been upside down for several days at that point.
The half-dozen neighbors who saw the flag, or knew of it, requested anonymity because they said they did not want to add to the contentiousness on the block and feared reprisal. Last Saturday, May 11, protesters returned to the street, waving flags of their own (“Don’t Tread on My Uterus”) and using a megaphone to broadcast expletives at Alito, who was in Ohio giving a commencement address. Martha-Ann Alito appeared in a window, complaining to the Supreme Court security detail outside.
During Trump’s quest to win, and then subvert, the 2020 election, the gesture took off as never before, becoming “really established as a symbol of the ‘Stop the Steal’ campaign,” according to Alex Newhouse, a researcher at the University of Colorado Boulder.
This spring, the justices are already laboring under suspicion by many Americans that whatever decisions they make about the Jan. 6 cases will be partisan. Justice Clarence Thomas has declined to recuse himself despite the direct involvement of his wife, Virginia Thomas, in efforts to overturn the election.
Now, with decisions in the Jan. 6 cases expected in just a few weeks, a similar debate may unfurl about Alito, the ethics experts said. “It really is a question of appearances and the potential impact on public confidence in the court,” Fogel said. “I think it would be better for the court if he weren’t involved in cases arising from the 2020 election. But I’m pretty certain that he will see that differently.”
If Alito were on another court, Fogel said, the flag could also trigger some sort of review to determine if there was any misconduct. But because the Supreme Court serves as the arbiter of its own behavior, “you don’t really have anywhere to take it,” he said.
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