History of the Upside Down Flag and the Justice Alito Controversy

Civil Rights Policy Brief #224 | By: Rod Maggay | May 28, 2024

Featured Photo by Indy Silva for US Renew Democracy News, 2024

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Policy Summary: On May 16, 2024 an article in the New York Times by investigative reporter Jodi Kantor reported that an American flag was seen flying upside down outside Supreme Court Justice Samuel Alito’s home. While the New York Times report was published in 2024, the incident occurred in January 2021 after the January 6th insurrection at the U.S. Capitol. On May 22, 2024 a second article was published by the New York Times which reported that the Pine Tree Flag was seen flying outside another home owned by Justice Alito. The Pine Tree Flag is a white flag with a green pine tree on it with the words “An Appeal To Heaven” above the picture of the pine tree. The Pine Tree Flag has recently been adopted by Christian Nationalists, far-right extremist groups and supporters of Donald Trump who believe the false claim that the 2020 election was stolen from the former President.

On November 13, 2023, the United States Supreme Court issued a Code of Conduct for Justices of the Supreme Court of the United States. Canon 3 of the Code is titled “A Justice Should Perform The Duties of the Office Fairly, Impartially, and Diligently” and under the Disqualification Section of Section B(2) of the Canon it states, “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.” The Code of Conduct is not enforceable on the Justices and merely acts as guidelines for what Justice should do if they decide to follow it. LEARN MORE

Policy Analysis: The controversy over the multiple flags seen flying at two of Justice Sam Alito’s residential properties calls into question the Justice’s ability to be impartial. That in turn is directly related to Canon 3, Section B(2) of the Supreme Court’s recently adopted Code of Conduct because it shows that the Justice is publicly taking a side on a political issue. Namely, that he supports the January 6th rioters and their efforts to thwart the legitimate results of the 2020 election.

Flying the American flag upside down has a long history going back centuries. It was originally used by sailors who were experiencing difficulties at sea. They would fly the American flag upside down as a signal that they needed immediate assistance. The flag has also been flown upside down to protest slavery and in modern times to protest the Vietnam War. And when the flag has appeared on stamps some have placed the stamps upside down on their mailings as a subtle way to express their displeasure with the government. In the 1920’s the United States issued rules regarding the flying, treatment and protocol of the American flag and one section of the rules specifically states that the flag should never be flown upside down, “except as a signal of dire distress in instances of extreme danger to life or property.”

But lately, the act of flying the flag upside down has been adopted by Christian Nationalists and far – right extremist groups to protest what they perceive as the United States currently being in distressing and troubling times. While the symbolic act may be to express their support for falsehoods such as the 2020 election being stolen from Donald Trump, Justice Alito’s act is far more troublesome because of his position as a Justice on the Supreme Court. While he is free to have his own personal political opinions, it does not appear that Justice Alito or his family was in “dire distress” or was in a situation that involved “extreme danger to life or property.” For the Justice to claim a neighborhood argument rose to this level was completely unnecessary on his part.

And it was unnecessary because his actions have now raised the possibility that the Justice cannot be impartial if cases are argued before him. Justice Alito had a professional obligation to present the appearance of impartiality and that he can be fair when adjudicating a case. That is all thrown out the window now because his act of raising two controversial flags over his property signals that he supports right wing extremist groups and the efforts they are undertaking to currently undermine American democracy. The Justice could have avoided being accused that he is not biased by simply not flying the flag upside down or flying a flag that has become a symbol of the Christian Nationalist movement.

So, what’s next in this unfortunate incident? Senator Dick Durbin of Illinois has called on Justice Alito to recuse himself from cases related to the 2020 election that might come before the Supreme Court while also demanding the Supreme Court adopt an enforceable code of conduct. Additionally, the non – profit group Citizens for Responsibility and Ethics in Washington (CREW) sent a letter to Chief Justice John Roberts asking him to intervene and persuade Justice Alito to disqualify himself. And another option, one that seems more likely, comes from Representative Steve Cohen of Tennessee. He is going to introduce a resolution censuring Justice Alito. The resolution would be a public reprimand of the Justice in order for Congress to express their disapproval of the Justice and his acts regarding the two flags that now raises questions about his ability to be impartial. This might be the more feasible option as it seems highly unlikely that the Chief Justice will force Justice Alito be disqualified from cases or that Justice Alito will recuse himself. LEARN MORE, LEARN MORE

Engagement Resources

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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