The Supreme Court’s crumbling institutional legitimacy was rocked to its core with the revelation that an inverted flag — the banner of Trump insurrectionists and false stolen election claims — was flown from a flagpole at Justice Samuel Alito’s home on Jan. 17, 2021, just days before President Biden’s inauguration.
It’s a bald political statement that ruptures any semblance of impartiality for Justice Alito and the court.
This is the latest in a series of ethical lapses by the court. It started with the leak of Justice Alito’s Dobbs decision (the Supreme Court Marshall’s investigation was unable to identify the leaker). Next came Justice Alito’s cynical and callous statements about the Dobbs holding, gloating about taking away a fundamental right to privacy and reproductive freedom.
And now, his First Amendment defense is that while he had nothing to do with the flag because his wife Martha-Ann raised it, the upside-down flag was permissible political counter-speech to an “objectionable and personally insulting” sign about former President Trump in a neighbor’s yard.
Now there are two Supreme Court justices with wives who have symbolically or directly aligned themselves with election deniers — Justice Thomas’s wife, Virginia, and Justice Alito’s wife, Martha-Ann. This gives, at the least, the appearance of impropriety and at worst predetermined results based upon political partisanship.
This is especially concerning given the pending decision on presidential immunity. Indeed, this calls into question the result in Trump v. Anderson, which unanimously held that states could not determine a candidate’s ballot eligibility for federal office.
To be sure, unanimity was based, in part, on federalist principles, but it nevertheless gives the appearance of impropriety when a Supreme Court justice flies a flag supporting an authoritarian insurrectionist. The veneer of neutrality is pulled back to reveal a justice who is not an adjudicator but an ardent partisan in judicial robes.
This violates the court’s newly minted code of conduct, which remains unenforced because the court regulates itself. Its legitimacy is buttressed by a paper tiger.
The inverted flag on Justice Alito’s flagpole violates nearly all of the court’s ethical rules.
Its first disqualification rule says “A Justice is presumed impartial and has an obligation to sit unless disqualified.” Alito’s impartiality has been shattered. He should be disqualified because he has not avoided “impropriety and the appearance of impropriety in all activities” per Canon 2, and he cannot “perform the duties of office fairly [and] impartially” per Canon 3 because the inverted flag signals his allegiance to a party that has pending matters before the court.
The partisan and volatile tenor of the inverted flag “endorse[s] a … candidate for public office,” which violates Canon 5 because it trades in the discredited Trump-invented trope of a stolen election. Justice Alito has not refrained from political activity; thus, the independence of the judiciary is called into question, per Canon 1. This is particularly disconcerting because Justice Alito is the third most senior justice on the court.
And something even more unsettling is that all these laudatory and majestic Canons can be rendered meaningless by a sentence in the disqualification rules: “The rule of necessity may override the rule of disqualification.”
We can see where this will end out of “necessity.” Justice Alito will refuse to recuse himself from the Jan. 6 insurrection case and all related matters. If the court refuses to administer and enforce its own self-promulgated code of conduct, not only will its legitimacy further erode but American democracy itself will fade into authoritarianism authorized by the court’s complicity.
Democracy is in distress whenever unelected judges insulate themselves from public scrutiny simply because they are the final arbiters of constitutional disputes. The finality and predictability that are bedrock principles of our democracy are illusory when justices’ impartiality can be questioned.
Every branch of government, including state and lower federal courts, has enforceable and binding codes of conduct that ensure impartiality, fairness and legitimacy. Congress must adopt a binding code of conduct for the Supreme Court. We should right the flag by turning it upward toward our democratic principles.
Cedric Merlin Powell is the Wyatt, Tarrant & Combs Professor of Law at the University of Louisville Brandeis School of Law. He is the author of “Post-Racial Constitutionalism and the Roberts Court.”