Legal experts are lamenting the lack of an enforceable judicial ethics code, with some calling for Supreme Court Justice Samuel Alito's recusal, following a New York Times report that a symbol of the “Stop the Steal” movement to reject the 2020 election was flown outside Alito’s home in the wake of the Jan. 6 insurrection at the U.S. Capitol.
Ten leading legal experts told Salon Friday that the conduct — the flying of an upside-down flag, a known symbol of the movement to overturn the results of the 2020 presidential election, at a justice's home — appears to violate the Supreme Court's own ethics code, adopted last last year, by creating an appearance of bias.
Those experts said it’s far past time for the nine justices who enjoy lifetime appointments to hold themselves to the highest ethical standards. But, they noted, the Supreme Court has shown itself reluctant to do so.
"The situation is out of control," Richard Painter, a former White House ethics lawyer under President George W. Bush who worked with Justice Alito on his 2006 Senate confirmation, told Salon. "This is after the insurrection, so it's really him weighing in, getting involved publicly in a dispute over the insurrection."
The U.S. Flag Code says the flag should only be displayed upside-down as a “signal of distress in instances of extreme danger to life or property.” Movements including the Tea Party and “Stop the Steal” have used upside-down flags as a symbol of protest and despair.
In an emailed statement, Alito told The Times: “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.”
The Times said its interviews found that his wife, Martha-Ann Alito, had a dispute with a neighbor over their anti-Trump sign. It’s unclear how long the upside-down flag flew, but a neighbor in a Jan. 18, 2021 email said the flag had been upside down for several days.
Fox News attorney and journalist Shannon Bream said on X that she spoke with Alito, who said a neighbor put up a “F— Trump” sign near a school bus stop. Bream said that Alito’s “distraught” wife put up the flag upside down “for a short term” after a neighbor put up a sign blaming Alito’s wife for the Jan. 6 attacks. Alito also claimed that a man called her “the c-word.”
Legal experts said judges have a responsibility to hold themselves to the highest standard.
“I don’t know why we have a Supreme Court justice flying a flag upside down, weighing in on an election, why his wife would be doing that,” Painter, a law professor at the University of Minnesota, said. “His wife is well aware of the impartiality obligations of a federal judge.”
Painter said he was not convinced by Alito attributing the up-side down flag to his wife, particularly when it was flown on their joint property. "When the house is used this way, I'd be shocked that she would do that without talking about it with him first."
Call for Recusal
Painter, who has called for an inspector general for the Supreme Court, said the Times report also raises “serious questions about whether he can impartially adjudicate any case related to Jan. 6.” He also suggested that special counsel Jack Smith should file a motion for Alito's recusal in the pending Trump v. United States case, in which the Supreme Court will weigh in on presidential immunity from criminal prosecution.
Several legal experts expressed concern about how Alito would handle that case in particular.
“A more blatant revelation of bias in a pending case is hard to imagine,” Washington & Lee University School of Law professor Jim Moliterno told Salon. “It was literally waving a banner that said, ‘I favor election-deniers.’”
"Who can possibly think he will decide this case in a neutral manner?" Professor Leslie Levin, a University of Connecticut School of Law professor, told Salon. "Of course, Justice Alito's political leanings were already well-known. But the flag flying incident indicates he has strong views about the facts underlying this case. His decision seems pre-ordained."
Earlier this year, Donald Sherman, executive director of advocacy group Citizens for Responsibility and Ethics in Washington, argued before the Supreme Court in Trump vs. Anderson, where the justices unanimously held that states couldn't determine eligibility for federal office. Colorado had tried to remove Trump from its ballot, pointing to the Constitution's insurrection clause.
"It would have been helpful if this information had been revealed to the public before our clients case was heard in Anderson before Justice Alito in February," Sherman told Salon.
Painter said the Senate Judiciary Committee should invite Alito to offer further explanation.
Painter said additional details could help Alito if “he thought it was inappropriate, he asked her to take it down, that would be a different explanation,” Painter said.
Moliterno said Alito’s response “reveals his utter lack of understanding of basic concepts of judicial ethics.”
“Had his wife posted a statement on her social media, for example, he might at least be able to argue that the statement was hers and did not reflect any bias by him in favor of election deniers,” Moliterno said. “But the flag, raised by whomever, was on their yard in front of their house. All reasonable people would regard it as a reflection of the household’s view, including his.”
Richard Zitrin, emeritus lecturer at UC Law San Francisco, said the flag being flown over the Alito home appears to be a "direct statement."
"We’re familiar with Justice Thomas declining to be disqualified from cases due to his wife’s political actions," Zitrin told Salon. "But here, this flag was flown over not just over Mrs. Alito’s house, but their house."
Professor Renee Knake Jefferson, who holds the Doherty Chair in Legal Ethics at the University of Houston Law Center, said Alito's response alone reinforces public distrust in the Supreme Court.
“It’s concerning that Justice Alito had no explanation like this, but instead placed blame on his wife and apparently still allowed the flag to remain for a period of days,” she told Salon. “I would expect a judge or justice who is dedicated to ensuring the court is neither political, nor perceived to be so, would state unequivocally that he denounces that the flag was flown in this way and will take steps to prevent a recurrence. Not saying so under these circumstances reinforces critiques that the court is as much a political institution as the other branches of government, which if accepted means a core institution of democracy is compromised.”
Unenforceable ethics code
Last November, the Supreme Court adopted its first-ever ethics code, which legal experts widely panned as unenforceable.
The Supreme Court's own ethics code reads in part: “a justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”
Professor Renee Knake Jefferson said the displaying of the upside down flag falls under the code’s provision discussing recusal.
“But the code does not require him to do so,” she said. “Ultimately, it is his decision alone to make. Unlike all other courts, there is no place for review or to appeal the decision of a Supreme Court justice who declines to disqualify themselves.”
Russell Wheeler, non-resident senior fellow with the Brookings Institution, said there's no way to file an ethics complaint and spark a special committee investigation against Alito — although he could have faced such an ethics process during his time on the U.S. Court of Appeals for the Third Circuit.
Wheeler, who has written about such enforcement mechanisms, said the Supreme Court borrowed some language from the binding ethics code for U.S. federal judges.
But he pointed out one line they omitted, which reads: "A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen."
Wheeler told Salon: "It's rather telling that the court was not willing to endorse what regardless is just the basic, common sense observation that once you have the additional power and prestige of being a Justice of the Supreme Court or a federal judge at all, there are certain restrictions on your behavior that you have to accept, and that you wouldn't have to accept if you are just an ordinary citizen."
The Supreme Court’s code also says that a justice should not publicly endorse or oppose a candidate for office, engage in “other political activity” and “avoid impropriety and the appearance of impropriety in all activities.” In addition, justices “should not engage in behavior that is harassing, abusive, prejudiced or biased,” reads the code.
Alfini said the American Bar Association's model code of judicial conduct does not include a family exemption when it comes to endorsing other candidates.
"If a family member endorses a publicly endorses a candidate for office, the code says it could be imputed to the judge," Alfini said.
Alfini said it's past time for the Supreme Court to come up with their own enforcement mechanism.
"Their own code certainly is not as expansive as the code for lower federal judges," Alfini said. "But they need to come up with a mechanism for enforcing — whether it's the nine of them getting together and deciding whether Alito, for instance, should recuse himself under these circumstances, or a smaller group of them being sort of an enforcement forcing body. They don't have any means right now to enforce any ethics rules, including their own."
And Sherman, of CREW, said any enforcement mechanism needs to consider situations where justices decide to stay on a case despite allegations of a conflict.
"But the ball remains with the justices to make that decision," Sherman said.
Push for impartiality
Geyh said he expects a wide-ranging public debate about whether Alito violated the code.
"Justice Alito has already attributed the flag to his wife, which complicates the analysis in ways that stalemate the issue," Geyh said.
Geyh said he finds such a debate “fruitless” given the lack of discipline attached to the code.
And he said our focus should be on installing justices who work to keep their biases at bay and remain open-minded.
Geyh said the pledge by 13 Trump-nominated federal judges to not hire future Columbia University students as law clerks, citing the tenor of pro-Palestinian protests, is another recent example of a shift toward overt partisanship in the judiciary.
"That's really out of character with what the federal judiciary has historically done,” Geyh said. “We need to push back against that.”
Geyh said he expects to see motions for disqualification filed against Alito — but doesn’t expect such motions to be successful.
“I think it's unlikely in the extreme that he will disqualify himself from those cases,” Geyh said.
Sherman, of CREW, questioned whether litigants will feel empowered to raise recusal motions.
"The system really puts the burden on litigants to raise those concerns," Sherman said. "And owners are reluctant to do that when ultimately Justice Alito is going to make his own decision and could potentially hold it against them or their clients."
Former federal judge Jeremy Fogel called for the Supreme Court to "create an independent, panel of experienced retired judges with deep experience in judicial ethics to advise it about recusals and difficult ethical questions."
"Such a panel wouldn’t provide a way to investigate situations like the current one involving the flag, but it could provide a check on the justices’ judgments going forward, including questions such as whether Justice Alito should recuse from pending [Jan. 6] cases," Fogel, executive director of the Berkeley Judicial Institute, told Salon.
Alfini called on Alito to at least provide the public with a letter explaining why he won't recuse himself. Former Justice Antonin Scalia did so in 2004, when he rejected calls for recusal after inviting his long-time acquaintance former Vice President Dick Cheney on a duck-hunting trip.
But Alito himself has balked at calls for more transparency and stringent ethical requirements, telling the Wall Street Journal, for example, that “Congress lacks the power to impose a code of ethics on the Supreme Court.”
“I marvel at all the nonsense that has been written about me in the last year," Alito continued. "The traditional idea about how judges and justices should behave is they should be mute. But that's just not happening, and so at a certain point I've said to myself, nobody else is going to do this, so I have to defend myself."
