Upside-Down U.S. Flag Flew at Justice Alito’s House After 2020 Election: Report
The crisis of confidence and partisan influence over the Supreme Court isn’t going away any time soon.
According to a Thursday report from The New York Times, in the aftermath of the Jan. 6 Capitol riot, neighbors of the Supreme Court judge noticed that the American flag outside of his home was being flown upside down — at the time a popular symbol of solidarity among supporters of former President Donald Trump who believed the 2020 election had been stolen.
One photo obtained by the Times showed that the upside down flag was visible at Alito’s Virginia home on Jan. 17, 2021, less than two weeks after the attempted insurrection at the Capitol and as the Supreme Court was still considering a challenge from Trump’s allies against the results of Pennsylvania’s 2020 vote. Neighbors interviewed by the publication confirmed that the display stood for several days before being taken down.
Ahead of the court’s decision on the case, Alito unilaterally ordered Pennsylvania election officials to separate out mail-in ballots that had been delivered to the state after election day — something the state was already doing. While the case was ultimately thrown out, Alito joined Justice Thomas in dissenting from the majority opinion and expressed his belief that the case should be heard. Alito was also a dissenter from the Supreme Court’s decision to reject a separate Texas lawsuit seeking to overturn the results of the presidential election in four states Biden won: Georgia, Michigan, Pennsylvania and Wisconsin.
Democrats in Congress were outraged.
“This is just stunning,” Rep. Pramila Jayapal (D-Wash.) wrote of the Times report. “The Supreme Court has rapidly lost its legitimacy and the trust of the American people because of the numerous conflicts of interest that Justices have and the lack of any semblance of impartiality from these right wing justices.”
Sen. Dick Durbin (D-Ill.) said Alito should recuse himself from all cases concerning the 2020 election. “Flying an upside-down American flag — a symbol of the so-called ‘Stop the Steal’ movement — clearly creates the appearance of bias,” Durbin said in a statement. “Justice Alito should recuse himself immediately from cases related to the 2020 election and the January 6th insurrection.”
The U.S. flag code stipulates that the star-spangled banner should “never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.” When asked about the flag by the Times, Alito threw his wife under the bus, stating that 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 added. One neighbor did confirm that there had been an ongoing dispute between Mrs. Alito, and a neighbor who’d placed an anti-Trump sign on their front lawn. Alito told Shannon Bream of Fox News on Friday that a neighbor had a sign that said “F— Trump” within 50 feet of where children wait for the school bus. Bream describes an ensuing war of words between the Alitos and the man who put up the sign, and that Mrs. Alito was distraught.
Even if this is true, it doesn’t explain why she would have decided to fly an upside-down American flag, or why Alito would have allowed the upside-down flag to fly despite Supreme Court ethics restrictions regarding public political displays by the justices.
It’s also an unsatisfactory attempt at dismissing concerns over Alito’s ability to remain impartial over cases related to the 2020 election. Last month, the Supreme Court heard arguments in two major cases related to Jan. 6 — one that would affect the Justice Department’s ability to charge participants in the riot and another that could grant Trump widespread immunity from criminal prosecution.
The immunity case before the Supreme Court stems from Trump’s ongoing efforts to delay or dismiss the Justice Department’s indictment against him over his role in efforts to overturn the 2020 election and the Jan. 6 riot. The court’s decision will have profound implications for the criminal indictments currently on the former president’s rap sheet.
In both cases, Alito’s questioning of Justice Department attorneys made it clear he was more inclined to side with the rioters and the former president than with the state. On the matter of presidential immunity, Alito at one point asked DOJ lawyer Michael Dreeben if, given that “presidents have to make a lot of tough decisions about enforcing the law […] if he makes a mistake he’s subject to the criminal laws like anybody else?”
Dreeben countered that “making a mistake is not what lands you in a criminal prosecution.”
In another striking moment, Alito suggested that closely contested elections would lead to a cycle where former presidents fear they will be “prosecuted by a bitter political [rival]” that “destabilizes the functioning of our country as a democracy.”
The court is expected to issue its final rulings on both cases later this summer.