An Upside-Down Flag Was Flown At Supreme Court Justice Samuel Alito’s Home After Jan. 6, 2021 Capitol Attack Raising New Ethics Concerns

Following the Capitol riots in 2021, an upside-down U.S. flag flew outside the home of Supreme Court Justice Samuel Alito.

The New York Times published a photo of the inverted flag, reporting that it was seen at the Alitos’ home in Alexandria, Virginia, on January 17, 2021, for several days, distressing neighbors.

“I had no involvement whatsoever in the flying of the flag,” Alito said in an emailed statement. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

His wife, Martha-Ann Alito, fought with another family in the neighborhood about an anti-Trump sign placed on their lawn.

The neighbors perceived the flag as a political statement. In the weeks after the 2020 election, the upside-down flag had become a symbol of the “Stop the Steal” movement, in which Donald Trump’s supporters falsely claimed that Joe Biden’s victory was invalid due to “widespread fraud.” No evidence of widespread fraud was ever produced. The inverted flag had been widely seen during the Capitol attack.

During that period, America’s highest court considered whether to consider some cases connected to the 2020 election. 

The report inspired calls for the Supreme Court justice to recuse himself from several high-profile cases pending before the court in 2024 involving the 2020 presidential election and following the U.S. Capitol attack, like the question of whether or not Trump might claim immunity from federal election subversion charges.

Judicial experts say that Alito violated ethics rules by flying the flag, which could call into question his neutrality regarding the Capitol attack and presidential election cases. 

Clarence Thomas, another Supreme Court justice, received much criticism for not recusing himself and called for recusal in election-related cases after his wife, the conservative activist Virginia “Ginni” Thomas, recognized that she attended Trump’s rally before the Capitol attack and backed White House efforts to invalidate the election results.

In March, Alito and Thomas were two of the five justices who wrote that states cannot remove a candidate from the ballot, including the president, unless Congress first passes legislation. 

The other justices who concurred with the opinion were Chief Justice Roberts, Justices Neil Gorsuch and Brett Kavanaugh.

On February 20, Alito slammed the high court’s landmark same-sex ruling in a five-page statement explaining why the court did not hear the case, Missouri Department of Correction v. Jean Finney. The case involved a dispute over whether jurors who expressed religious concerns about same-sex marriage were dismissed from an employment discrimination case.

In his statement, the justice agreed with the Supreme Court’s choice not to hear the Missouri lawsuit but said he believed it “exemplifies the danger” he expected in the 2015 Obergell v. Hodges case, which legalized same-sex marriage. He wrote that the way Obergefell v. Hodges was written back in 2015 “made it clear that the decision should not be used in that way.”