U.S. Supreme Court Justice Samuel Alito is facing steep criticism, including calls for his removal from the bench, after a new report detailed how a U.S. flag flew upside-down in front of his home days after the January 6, 2021, attack on the Capitol by a mob of loyalists to former President Donald Trump. According to U.S. flag code, the flying of the flag in such a manner is “a signal of dire distress.” However, in recent years, it has come to symbolize deep dissatisfaction with a political outcome — during that time specifically, it was used by Trump loyalists to express their opposition to the outcome of the 2020 presidential election, which was won by President Joe Biden. Upside-down flags were prevalent during the Capitol attack itself, and social media posts from Trump supporters in January 2021 encouraged others to hang their flags upside-down to symbolize their continued support for the then-outgoing president and his false claims of election fraud. According to a report from The New York Times, Alito’s home had an upside-down flag flying during this time, too.
The January 6, 2021, Capitol attack marked a significant moment in U.S. history. Trump loyalists stormed the Capitol in an attempt to overturn the 2020 presidential election results. This insurrection led to widespread condemnation and subsequent investigations. The use of an upside-down flag during this period became a symbol of distress and opposition to the election outcome among Trump supporters. Historically, the upside-down flag has been a signal of dire distress, but its use by Trump supporters in 2021 added a new layer of political significance.
The New York Times report revealed that Justice Samuel Alito’s home displayed an upside-down flag for several days following the Capitol attack. Neighbors reported seeing the flag on January 17, 2021, just 11 days after the insurrection and four days after the House voted to impeach Trump for his role in instigating the chaos. Alito attributed the flag to his wife, Martha-Ann Alito, claiming she had flown it in response to a neighborhood dispute involving signs critical of Trump. “I had no involvement whatsoever in the flying of the flag. It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs,” Alito said.
The display of such a charged political symbol in front of a Supreme Court Justice’s home raises significant ethical concerns. Amanda Frost, a law professor at the University of Virginia, likened the flag display to putting a “Stop the Steal” sign in one’s yard, which is problematic for a justice deciding election-related cases. The Supreme Court had considered numerous election-related cases around this time, and Alito’s dissent in a case refusing to hear another election challenge further complicates the issue. For any other federal judge, such a display would likely prompt a misconduct review, but the Supreme Court lacks mechanisms to enforce such reviews.
Political figures and commentators have expressed strong reactions to the incident. Former U.S. Attorney and University of Alabama law school professor Joyce Vance criticized Alito’s excuse, suggesting that a Supreme Court Justice should immediately take down such a flag to avoid any appearance of impropriety. MSNBC host Rachel Maddow described the flag hanging outside Alito’s home as “unsettling” and “gross,” urging Chief Justice John Roberts to take action. Ruth Ben-Ghiat, a history professor at NYU and expert on fascism and authoritarianism, went further, calling for Alito’s removal from the Court over these and other ethics concerns.
U.S. Senate Judiciary Committee Chair Dick Durbin has called for Alito’s recusal from cases related to the 2020 election and the January 6 insurrection. Durbin emphasized that the flag display created the appearance of bias, which is particularly problematic as the Court considers cases related to former President Trump. Durbin and others have renewed calls for the passage of the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which would establish an enforceable code of conduct for the Supreme Court.
The controversy surrounding Alito’s flag display is part of a broader pattern of ethical breaches among Supreme Court justices. Alito and Justice Clarence Thomas have faced scrutiny for accepting luxury travel and financial transactions from right-wing operatives involved in cases before the Court. Thomas’s involvement in a case regarding documents related to the January 6 attack, despite his wife’s support for efforts to overturn the 2020 election, further highlights the need for ethical reforms.
Ezra Levin, co-executive director of Indivisible, described Alito’s behavior as disqualifying for a Supreme Court Justice and called for increased congressional oversight and structural reforms to restore the Court’s legitimacy. Devin Ombres, senior director for courts and legal policy at the Center for American Progress, emphasized that Alito’s flag display was a clear admission of partisan sympathy with Trump’s “Stop the Steal” movement and called for his recusal from related cases.
“The court is in an ethical crisis of its own making, and Justice Alito and the rest of the court should be doing everything in their power to regain public trust,” said Senator Dick Durbin. “Supreme Court justices should be held to the highest ethical standards, not the lowest.”
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