Justice Samuel Alito sought to head off mounting criticism Friday over a report that an inverted American flag was flown at his house in January 2021, telling Fox News that his wife hoisted the symbol of discontent in response to profane signs in the neighborhood.
Alito said that a neighbor had posted a sign saying “F**k Trump” near a school bus stop and then a sign attacking his wife, Martha-Ann Alito. On a walk, the justice told Fox, the Alitos got into an argument with the neighbor, who used the term “c**t” at one point. His wife then flew the inverted flag.
A growing chorus of Democratic lawmakers and ethics experts lobbed criticism at the Supreme Court in response to the report and demanded that Alito recuse himself from cases involving the 2020 presidential election and January 6, 2021, attack on the US Capitol.
The upside-down flag was a symbol for former President Donald Trump’s supporters who falsely claimed widespread fraud in the presidential election.
“This stuff’s not normal,” Minnesota Gov. Tim Walz, a Democrat, told CNN on Friday. “I’m just stunned that we would ever have had to have a Supreme Court justice explain why his wife was flying a flag upside down in response to an … insurrection.”
The New York Times published on Thursday a photograph of the flag that it said was seen at the justice’s home in Alexandria, Virginia, on January 17, 2021, days before President Joe Biden’s inauguration. Alito told the Times he had “no involvement” in the flag’s hanging and said it was placed there “briefly.”
There was little sign of political tension Friday in the quiet suburban neighborhood outside Washington, DC, where Alito lives. On his leafy street near the Potomac River, the flagpole was barren. Neighbors who spoke to CNN said the Alitos were “great neighbors” and described Martha-Ann Alito as “nice” and “kind.”
Neighbors CNN spoke with said they recalled the flag being inverted but said they didn’t know what it meant and there was no public reaction at the time.
“It’s her right,” one neighbor said, adding that if she wanted to hang up the Gadsden flag or any other symbol, she had the right to do so.
A spokeswoman for the Supreme Court has not respond to CNN’s requests for comment.
Democrats and court critics call for recusal
Alito’s explanation hasn’t satisfied critics, who noted the Supreme Court is hearing cases this year involving the aftermath of the 2020 election.
Several Democratic members of Congress have called for Alito to recuse himself from cases involving the 2020 election, including the case against Trump for his alleged efforts to overturn the election – which is currently on hold as the Supreme Court weighs what role presidential immunity may play in the case.
Rep. Hank Johnson, a Georgia Democrat who serves on the House Judiciary Committee, described Alito and Justice Clarence Thomas as ”MAGA kindred spirits.”
“By their obvious bias, both Thomas and Alito must recuse themselves from participating in the Supreme Court’s consideration of the case involving Trump’s immunity claim, and other matters arising from the January 6 insurrection,” Johnson said in a statement. “Their refusal to recuse will further erode public trust and confidence in the Supreme Court, and in the rule of law the court has a duty to uphold.”
Sen. Dick Durbin, the Illinois Democrat and chairman of the Senate Judiciary Committee, said the incident was the “latest proof” that Congress should pass ethics reform for the high court.
“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, including the question of the former president’s immunity.”
Republicans were, at least initially, more muted in their response — or didn’t address the criticism.
Sen. Tom Cotton, an Arkansas Republican who also sits on the Judiciary Committee, blamed the media for attempting to “incite another mob to try to intimidate justices, harass them at home, or worse.”
South Carolina Sen. Lindsey Graham, the top Republican on the Senate Judiciary Committee, didn’t respond to a request for comment.
Renewed calls for ethics reform
The Supreme Court is weighing major cases this term tied to the 2020 election and the attack on the Capitol. In one, the justices are weighing Trump’s claim of absolute immunity from special counsel Jack Smith’s election subversion charges. In another, a January 6 rioter is challenging an obstruction charge filed against him by prosecutors, arguing that Congress intended that law to apply to people destroying evidence, not storming a government building.
The revelations about the flag reenergized calls on the left for Congress to enact ethics rules for the Supreme Court, an effort has been stalled for months.
By adopting the code of conduct last year, Chief Justice John Roberts appeared to head off Democratic efforts in Congress to impose an ethics code on the high court. But the code’s provisions are self-enforced, and many of the court’s critics argue the document doesn’t adequately address scandals that have plagued the high court for years.
“If a judge on any other federal court had done this, the allegation would be investigated because it calls into question a person’s ability to fairly decide a case,” Sen. Sheldon Whitehouse, a Rhode Island Democrat and member of the Senate Judiciary Committee, told CNN in a statement.
“Through a long string of problematic behavior that has leaked out in the press, the far-right justices have demonstrated that they too should be subject to an enforceable ethics code,” Whitehouse said. “They are not capable of policing themselves.”
News of the flag landed at a critical moment in the Supreme Court’s term, as the justices race to finish opinions before their self-imposed end-of-June deadline. Public support for the court has remained near historic lows since the overturning of Roe v. Wade in 2022. And there have been signs that the combination of controversial cases and ethics scandals have frayed relationships internally.
“Displaying a political symbol like this, with a clear message about the 2020 election given the timing, in the front yard of one’s home falls under this code provision, and Justice Alito should disqualify himself from cases related to the 2020 election challenges,” said Renee Knake Jefferson, a law professor at the University of Houston Law Center.
“But the code does not require him to do so,” Jefferson added. “Ultimately, it is his decision alone to make.”
This story has been updated with additional developments.
