Does an Upside-Down American Flag at Alito’s House Violate Judicial Ethics?

Does an Upside-Down American Flag at Alito’s House Violate Judicial Ethics?

The revelation that an upside-down American flag, a symbol adopted to contest Joseph R. Biden Jr.’s electoral victory, flew outside Justice Samuel A. Alito Jr.’s house in the days after the Jan. 6, 2021, attack on the Capitol raised questions about whether that had violated ethics rules.

The justice has said that his wife put up the flag in response to a neighbor’s anti-Trump yard sign. It remains unclear how long the inverted flag was on display outside his residence in Virginia.

It is the most recent disclosure about the Supreme Court to fuel concerns about impartiality and the appearance of bias.

Some of those controversies have involved Justice Alito. In June, he defended his decision to accompany a wealthy conservative billionaire on a luxury fishing vacation. That billionaire later had cases before the Supreme Court. In September, Justice Alito rejected demands for recusal in a major tax case after he gave interviews to one of the lawyers involved, David Rivkin, for The Wall Street Journal’s editorial page.

Here’s what to know.

Ethics experts say there is not a clear-cut answer. That is in part because the justice said his wife had put up the flag, raising questions about whether the flag, and its symbolism, reflected his own views.

“It’s close,” said Amanda Frost, a law professor at the University of Virginia and ethics expert. “I certainly think it raises a question.”

Jeremy Fogel, a former federal judge and the director of the Berkeley Judicial Institute, contrasted the situation with Justice Clarence Thomas and his recusal this term from an appeal involving an architect of the plan to subvert the 2020 election. Justice Thomas did not cite a reason in declining to participate in the case.

That case involved John Eastman, a former law clerk to the justice and a friend, who had asked the Supreme Court to overturn a lower-court decision that allowed a House committee to view messages he said were protected by attorney-client privilege. In that instance, Judge Fogel explained, Justice Thomas had acted appropriately because it is improper for judges to hear cases directly involving the personal interests of family members or others with whom they have a close relationship.

Justice Alito has participated in cases related to the 2020 election, including three connected to Jan. 6 this term. Even though those three cases do not turn directly on the question of whether the 2020 election was stolen, recusal would be more about avoiding an appearance of a conflict: None of the cases would be before the court if not for the Jan. 6 attack and the attempts to overturn the election.

Earlier this term, the Supreme Court announced an ethics code — a first for the court.

Under those guidelines, justices are encouraged to avoid even the appearance of bias. Legal experts say that displaying an upside-down flag would likely violate such rules.

The Supreme Court has also cautioned its employees against anything that might signal a political display, according to guidelines circulated to the staff and reviewed by The New York Times. Such displays would include signs and bumper stickers.

It remains unclear, however, what would happen even if Justice Alito were directly accused of violating the ethics code. The code has no clear enforcement mechanism, and there is no process, at least that has been disclosed to the public, for investigating a complaint of a violation or any disciplinary measures that may be imposed if a violation were found.

This term, the justices heard several cases related to — and stemming from — the Jan. 6 attack.

In March, the court, by a 9 to 0 vote, ruled that states may not block former President Donald J. Trump from the ballot, rejecting a challenge from Colorado. It is set to decide two other cases, one on whether Mr. Trump is immune from prosecution on charges that he plotted to subvert the election and another on whether prosecutors can use an obstruction statute typically used in white-collar cases to charge people involved in the Jan. 6 riot.

“It really is a question of appearances and the potential impact on public confidence in the court,” Judge Fogel said. “I’m on the hawkish side of most ethical questions, and 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.”

Jodi Kantor contributed reporting. Julie Tate contributed research.

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