Following the 2020 presidential election, as some Trump supporters falsely claimed that President Joe Biden robbed the office, many of them displayed a surprising symbol outside their homes, in their cars and in online posts: an upside-down American flag.
One of the houses with an inverted flag at that time was the residence of the Federal Supreme Court Justice Samuel Alitoin Alexandria, Virginia, according to photographs and interviews with neighbors.
The inverted flag was raised on January 17, 2021, the images showed. President Donald TrumpRepublican Party supporters, including some brandishing the same symbol, had rioted at the Capitol just over a week earlier. There were three days until Biden’s inauguration. Alarmed neighbors took photographs, some of which were recently obtained by The New York Times. Word of the flag reached the courthouse, people who worked there said in interviews.
Sign up for The Morning newsletter from the New York Times
While the flag was flying, the court was still debating whether to hear a 2020 election case, with Alito losing the ruling. In the coming weeks, the justices will rule on two pivotal cases involving the Jan. 6 storming of the Capitol, including whether Trump has immunity for his actions. His decisions will determine the extent to which he can be held responsible for trying to overturn the last presidential election and his chances of re-election in the next one.
“I had no involvement in the raising of the flag,” Alito said in a statement emailed to the Times. “It was briefly put up by Ms. 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, ethics experts said. “It could be his wife or someone else who lives in his house, but he shouldn’t have that in his backyard as a 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 judge’s wife, Martha-Ann Alito, was in a dispute with another family on the block over an anti-Trump sign on their lawn, but given the timing and starkness of the symbol, neighbors interpreted the flag as inverted as a political statement by the couple.
The long-standing code of ethics for the lower courts, as well as the one recently adopted by the Supreme Court, emphasizes the need for judges to remain independent and avoid political statements or opinions on issues that may come before them.
“You always want to be proactive about the appearance of impartiality,” Jeremy Fogel, a former federal judge and director of the Berkeley Judicial Institute, said in an interview. “Best practice would be to make sure 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 guidance distributed to employees and reviewed by the Times. The display of posters or stickers is not permitted, according to the court’s internal rules and a 2022 memo that reiterates the ban on political activities.
Asked whether these rules also apply to judges, the court refused to answer.
The exact duration of the flag flying outside Alito’s residence is unclear. In a Jan. 18, 2021, email reviewed by the Times, a neighbor wrote to a relative that the flag had been upside down for several days.
In recent years, the quiet sanctuary of his street, with Republican and Democratic residents, has become tense with conflict, neighbors said. Around the 2020 election, a family on the block displayed an anti-Trump sign with an expletive on it. This apparently offended Martha-Ann Alito and led to increasing conflict between her and her family, according to interviews.
Some residents also bristled at the noise and intrusion caused by protesters, who began appearing in front of Alito’s residence in 2022, after the Supreme Court struck down the federal right to abortion. Other neighbors joined the protesters, whose intention was “to bring the protest into their personal lives because decisions affect our personal lives,” said Heather-Ann Irons, who came out to protest.
The half-dozen neighbors who saw the flag, or heard about it, requested anonymity because they said they did not want to escalate the conflict on the block and feared reprisals. Last Saturday, May 11, protesters returned to the streets, waving their own flags (“Don’t Tread on My Uterus”) and using a megaphone to broadcast profanities at Alito, who was in Ohio giving a commencement speech. Martha-Ann Alito appeared at a window, complaining to Supreme Court security outside.
Turning the American flag upside down is a symbol of emergency and distress, first used as a military SOS, historians said in interviews. In recent decades, it has been increasingly used as a symbol of political protest – a controversial symbol because the flag code and military tradition demand that the supreme symbol of the United States be treated with respect.
Over the years, inverted flags have been displayed by both the right and the left in protest over a range of issues, including the Vietnam War, gun violence, the Supreme Court’s overturning of the constitutional right to abortion, and, in particular, results electoral. In 2012, Tea Party followers reversed flags on their homes to signal disgust at President Barack Obama’s re-election. Four years later, some liberals advised doing the same after Trump’s election.
During Trump’s quest to win and then subvert the 2020 election, the gesture took off like 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.
A flurry of social media posts urged Trump supporters to flip their flags or buy new ones to display upside down.
“If January 6th comes and Biden is confirmed by the Electoral College, our nation will be in danger!!” wrote one poster on Patriots.win, a forum for Trump supporters, garnering more than 1,000 “for” votes. “If you can’t go to the rally in DC then you should do your duty and show your support for our president by flying the flag upside down!!!!”
Local newspapers from Lexington, Kentucky, to Sun City, Arizona, and North Jersey wrote about the flags appearing nearby. Just days before the inauguration, a Senate candidate in Minnesota flew an inverted flag on his campaign vehicle.
Hanging an inverted flag outside a home was “an explicit sign that you are part of this community that believes America has been taken and needs to be reclaimed,” Newhouse said.
This spring, the justices are already laboring under the suspicion among many Americans that any decisions they make on the January 6 cases will be partisan. Justice Clarence Thomas refused 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 within just a few weeks, a similar debate could emerge over Alito, ethics experts said. “It’s really a matter of appearances and the potential impact on public confidence in the court,” Fogel said. “I think the court would be better off if he wasn’t involved in the cases arising from the 2020 election. But I’m sure he’ll see it differently.”
If Alito were on another court, Fogel said, the flag could also trigger some type of review to determine whether there was any misconduct. But because the Supreme Court serves as the arbiter of its own behavior, “we don’t really have anywhere to take it,” he said.
c.2024 The New York Times Company
