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Should Supreme Court justices be allowed to fly controversial flags above their homes?

Northeastern legal experts say Supreme Court Justice Samuel A. Alito Jr.’s flag-flying episode is a clear ethical violation.

Justice Samuel Alito sitting at the Supreme Court.
A provocative flag was on display above Supreme Court Justice Samuel A. Alito Jr.’s New Jersey home last summer, according to the New York Times. Erin Schaff/The New York Times via AP, Pool

The New York Times reported on Wednesday that a provocative flag was on display above Supreme Court Justice Samuel A. Alito Jr.’s New Jersey home last summer, two years after a different — and equally controversial — flag was seen above his Virginia home. 

While each flag has its own iconographic history, both are most recently associated with the “Stop the Steal” movement and the Jan. 6 attack on the U.S. Capitol. 

Constitutional scholars at Northeastern University say the flag-flying episode, as reported, is a clear ethical violation at a moment when the court is facing what they and many other observers say is a crisis of legitimacy.

Headshot of Jeremy Paul (left) and Daniel Urman (right).
Portraits of Northeastern University Professor of Law Jeremy Paul and Daniel Urman, director of hybrid and online programs in the School of Law, and director of the Law and Public Policy. Photo by Alyssa Stone/Northeastern University and Matthew Modoono/Northeastern University

“It is highly inappropriate for Justice Alito to fly flags that indicate his taking sides on partisan issues,” says Jeremy R. Paul, a professor of law and former dean of the Northeastern University School of Law. “There is no excuse for this.”

Speaking to the Times recently about the upside-down American flag flowing in 2021, Alito wrote: “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.”

This week, the flag in question is the “Appeal to Heaven” flag, featuring a green pine tree, which dates to the American Revolution. Variously, the flag has been used in connection with Christian nationalism, the Massachusetts Navy ensign and other conservative causes. But most recently, it was seen among the sea of rioters on Jan. 6.

House Speaker Mike Johnson received criticism for displaying the same flag outside his office last year. Johnson told CNN that it “goes back to the founder’s era. I’ve always flown that flag,” noting that it “has nothing to do” with the “stop the steal” protests. 

Because the symbols are linked to causes close to former President Donald Trump, whose claim of presidential immunity is currently before the high court, it would be improper for the justices to display them in such a manner, Paul says.  

“It casts doubt on [Alito’s] impartiality and provides strong grounds for his recusal in the Trump case involving presidential immunity — and other cases that turn on a partisan divide,” he says.

Dan Urman, director of the law and public policy minor at Northeastern, who teaches courses on the Supreme Court, agrees: “The two instances of Justice Alito flying a flag associated with Jan. 6 insurrectionists over his homes are deeply troubling. They mark clear violations of the justices own code of conduct adopted last year.”

Displaying “signs or bumper stickers” violates the court’s own rulebook, according to a 2022 memo.

Last year, reporting by ProPublica showed that several members of the court failed to report gifts and luxury travel; those reports focused on the situations of Clarence Thomas and Alito. Legal groups and advocates have called on Chief Justice John Roberts to enforce stricter recusal standards amid concerns that ties to wealthy donors may be influencing the justices’ conduct. Those calls ultimately resulted in the adoption of a new ethics code in November.

Urman continues: “These actions make it difficult if not impossible for an observer to think Justice Alito can fairly judge cases involving former President Trump and his actions on January 6th. At the very least, Justice Alito should recuse himself from any January 6th cases, as Senator [Dick] Durbin has suggested. Beyond that, it shows that the justices cannot be trusted to police their own behavior.”

Urman says the justices should be doing more to strive, in all manner of appearance, toward impartiality. 

“At a time when the justices are trying to convince the public that they are not political, Justice Alito is making their jobs much, much harder,” Urman says.