Alito’s upside-down flag has destroyed confidence in the Supreme Court 

An upside-down U.S. flag is a powerful symbol of dire distress and a versatile sign of protest. However, just over a week after the January 2021 Capitol attack, when this flag was seen flying over the home of Supreme Court Justice Samuel Alito, it took on a more troubling meaning.  

This upside-down flag came back into media on Friday when the New York Times published a piece about the incident, framing it in the context of two important Supreme Court decisions that will come down in June, essentially determining former President Trump’s legal exposure for, as the Times phrased it, “his efforts to subvert the election.” 

The events of January 6, 2021, when a mob stormed the U.S. Capitol in an attempt to overturn the presidential election results, marked a dark chapter in American history.  

The involvement of Trump supporters, spurred by unfounded claims of election fraud, led to an attack on the U.S. Capitol that threatened the core of democratic governance.  

In the wake of these events, the Supreme Court has been tasked with handling cases related to the rioters and the broader implications. The flag incident at Alito’s home raises critically important questions about the potential biases that may influence these critical decisions. 

The recent revelation about the flag at Alito’s residence adds another layer of controversy to a court already grappling with unprecedented cases related to Trump and the Jan. 6 Capitol riot. This development highlights growing concerns about the impartiality and integrity of the highest court in the land and underscores the pressing need for transparency and accountability within the judiciary. 

The Supreme Court, designed as the pinnacle of judicial authority and impartiality, is facing a crisis of confidence. Recent polls indicate a significant decline in public trust, with many Americans expressing skepticism about the court’s ability to remain unbiased.  

As Pittsburgh lawyer Jason Matzus points out, “This erosion of trust is not just a passing phase but a serious threat to the fabric of American democracy. The sight of an upside-down flag at Alito’s home is more than just a political statement; it is a symbol of the deep divisions and challenges facing the Supreme Court today.” 

Public perception of the judiciary’s integrity is crucial for maintaining the legitimacy of the Supreme Court. When justices appear to be influenced by partisan politics, it erodes the public’s confidence in their rulings. The recent incident involving Justice Alito’s home is a stark reminder of the importance of maintaining a clear separation between personal beliefs and judicial responsibilities. Any indication that a justice might sympathize with extremist views can have far-reaching consequences for the court’s reputation and its ability to function effectively. 

Justices, like all public officials, should be held to the highest standards of conduct. This includes clear guidelines for recusals in cases where there may be a conflict of interest or perceived bias. The court should also be far more transparent about its decision-making processes and the influences that might affect its rulings. By doing so, it can begin to rebuild public trust and reinforce its role as an impartial judicial body. 

This is where things get very thorny very fast. 

A Supreme Court that is perceived as biased or influenced by partisan politics poses a serious threat to democracy. The judiciary must be seen as a check on the other branches of government, ensuring that laws and executive actions adhere to the Constitution.  

When the court’s impartiality is perceived to be in doubt, it weakens this critical check and balance, potentially allowing for the erosion of democratic norms and principles.  

This is why the incident at Alito’s home is so critically important today. It is just one more in a powerful, growing line of vivid illustrations of the broader issues at play, underscoring the need for immediate reforms to safeguard the court’s integrity. 

To say that this weekend was a bad weekend for the Supreme Court would be a supreme understatement.  

With Alito having dug himself in on the paper-thin defense that it was his wife who briefly put up the upside-down flag at their home, Rep. Pramila Jayapal (D-Wash.) said Sunday on MSNBC, “If SCOTUS justices want to control women’s bodies across the country, they should be able to control what flag is flown outside their house.” 

The same MSNBC show asked what would happen if Justice Sonia Sotomayor showed a similar disrespect to the American flag — a question far too terrifying to even imagine in the current political climate.  

Any corruption in the court or even perception of corruption clearly can’t be self-policed by the court. This new flag incident shows how important it is to immediately revamp the ethical guidelines under which Supreme Court justices operate.  

Though the court released a statement in November to essentially serve as such a code, it lacks much-needed teeth. As the Brennan Center very directly pointed out, it is a remarkably weak set of guidelines that is poised to fail.  

What is desperately needed — and this can’t be repeated enough — is a strong and forward-looking ethical code that takes away unnecessary judgment calls. A real ethical code wouldn’t leave it to Alito to decide whether he can continue to sit on cases related to Jan. 6 — it would clearly and absolutely mandate recusal.  

Aron Solomon is the chief strategy officer for Amplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania and was elected in 2015 to Fastcase 50.