by Justin Jouvenal and Ann E. Marimow
Washington Post
May 17, 2024 at 5:25 p.m. EDT
https://www.washingtonpost.com/politics ... down-flag/
In the fraught weeks after the Jan. 6, 2021, assault on the U.S. Capitol, the wife of Supreme Court Justice Samuel A. Alito Jr. flew an upside-down American flag at their home following a dispute with a neighbor over anti-Trump yard signs, according to a statement from the justice and interviews with neighbors.
The upside-down flag has long been used as a sign of distress as well as protest by liberals and conservatives. At the time, it had been embraced by supporters of the “Stop the Steal” movement who falsely claimed the 2020 election had been stolen from Donald Trump. Some rioters displayed it when they stormed the Capitol to disrupt the formal certification of Joe Biden’s victory.
The flying of the flag at the justice’s home, which was first reported Thursday by the New York Times, has prompted calls for Alito to recuse himself from a pair of high-profile Jan. 6-related cases that the court is set to rule on in coming weeks: whether Trump has immunity for his efforts to remain in office after losing the 2020 election, and whether it was proper for the Justice Department to use an obstruction statute to charge the more than 300 who rioted that day.
Neighbors and acquaintances of Martha-Ann Alito said they have never heard her espouse election disinformation or support for the Jan. 6 attack. But they also said the flag was displayed on the front lawn of the Alitos’ Fairfax County, Va., home soon after a dispute that appeared to have political dimensions.
Neither of the Alitos responded to a request for comment through the court.
“I had no involvement whatsoever in the flying of the flag,” the justice said in a statement to the Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
A woman who lives down the street from the Alitos, who like other neighbors spoke on the condition of anonymity to protect their privacy, said her adult daughter had brought home some signs from a protest and propped them up against her bushes in the front yard. Another neighbor, who said the signs appeared in late 2020, said that one had Trump’s name on it with an expletive and that the other carried a message along the lines of “you are complicit.”
The house sits at the entrance to the quiet suburban cul-de-sac that the Alitos have called home for more than a decade. The neighbor who described the placards said they didn’t mention the Supreme Court justice explicitly, but the wording of the latter one prompted some residents to wonder whether it was a dig aimed at Alito, a staunch conservative who has frequently sided with Trump’s position in cases before the court.
At the time, the Supreme Court was deciding whether to take emergency action on a case related to Trump’s efforts to block Biden’s victory, and passions were running high about the election and Jan. 6.
In an interview Friday, the mother of the woman with the signs said Martha-Ann Alito was passing by her home one day and made comments to her daughter about them. A heated back-and-forth ensued, but the mother said she did not know what was said. The daughter, who does not live in the Washington area, did not respond to requests for comment.
Alito told Fox News reporter Shannon Bream on Friday that the sign with the expletive was about 50 feet from a school bus stop. He said his wife spoke with the neighbors about the signs shortly after Jan. 6, but the conversation did not go well, Fox reported Friday. The neighbors then put up a sign directly attacking his wife and blaming her for the Jan. 6 riots, Alito alleged. He did not say what the sign said, according to the news station.
Alito told Fox that someone living on the property got into an argument with his wife and called her a crude, derogatory word for women. He said his wife was distraught afterward and wanted to make a statement, so she hung the flag upside down.
Alito said he couldn’t tell his wife what to do, and the neighborhood has been “very political.”
One neighbor interviewed by The Washington Post said she first noticed the upside-down flag in late January 2021, and it remained up for two to five days. The neighbor said she never saw anyone raise the flag or lower it when it came down, and Martha-Ann Alito never told her what message she was trying to send.
The Times obtained a photo of the flag flying upside down Jan. 17, 2021.
The incident has once again plunged the Supreme Court into controversy, two years after revelations that Virginia “Ginni” Thomas, the wife of Justice Clarence Thomas, pressed Trump White House officials to overturn the 2020 election results and said the contest had been stolen. Clarence Thomas has refused subsequent requests from Democrats and experts on court ethics to recuse himself from Jan. 6-related cases.
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An upside-down flag waving in front of the U.S. Capitol on Jan. 6, 2021. (Michael S. Williamson/The Washington Post)
Some Democratic politicians and court accountability groups made similar calls Friday for Alito to recuse, arguing that the upside-down flag at his house raised questions about his impartiality and created the appearance of bias.
“[Alito] must recuse himself from cases involving the 2020 election and former President Donald Trump,” Democratic Leader Hakeem Jeffries (D-N.Y.) said in a statement. “Congress should immediately consider legislation to impose an ethical code of conduct on a runaway Supreme Court.”
Asked at the White House briefing whether the president believes Alito should recuse, press secretary Karine Jean-Pierre said that “that is something for the court to decide.” She emphasized that Biden believes the American flag is sacred and that “we should be making sure that it is respected in that way.”
The federal recusal statute that applies to all judges and justices requires a justice to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned” or “where he has a personal bias or prejudice concerning a party.”
The court’s new code of conduct, adopted in November in response to ethics controversies, separately prohibits justices from engaging in political activity and directs them to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Court employees are regularly reminded that they may not publicly support or oppose a partisan organization or candidate, including through the display of “signs or bumper stickers, or stating positions on social media,” according to the court’s human resources manual.
Rakim H.D. Brooks, president of the liberal advocacy group Alliance for Justice and a former law clerk to Justice Brett M. Kavanaugh during his D.C. Circuit tenure, said in a statement Friday that it does not matter whether it was Alito or his wife who flew the flag on the couple’s property so long as the justice knew it was being flown and did nothing to stop it.
“Supreme Court justices are supposed to be the ultimate guardians of our Constitution,” Brooks said in a statement that called on Alito to recuse from any case related to Trump or the Jan. 6 attack.
Alito said he couldn’t tell his wife what to do ...
But Stephen Gillers, an expert in judicial ethics at New York University’s law school, disagreed, noting that the test in the recusal statute is based on the perspective of a fair-minded person who has all the facts.
“I don’t think such an objective observer would question Alito’s impartiality based on this incident,” Gillers said in an email. “I find it impossible to believe that Alito knew the flag was flying upside down or, if he did know, that he knew the relationship to ‘Stop the Steal.’ I don’t believe he would have allowed this to happen otherwise.”
Gillers added that while Alito’s explanation for how it happened is “hard to believe, it is more credible than the view that he knowingly chose to fly the flag upside down knowing its political message.”
