Alito’s inverted flag makes a mockery of the Supreme Court’s code of ethics

The crumbling institutional legitimacy of the Supreme Court upside down flag — a banner of Trump insurrectionists and false stolen election claims — was hoisted from a flagpole at Justice Samuel Alito’s home on January 17, 2021, days before President Biden’s inauguration.

This is a blatant political statement that destroys the appearance of impartiality of Judge Alito and the court.

This is the latest in a series of ethical lapses by the court, which began with Justice Alito’s leak. Dobbs’ decision (The investigation by the Chief Justice of the Supreme Court cannot be identified Next, Justice Alito’s cynical and ruthless statement They gloat that the Dobbses have taken away fundamental rights to privacy and reproductive freedom.

And now his First Amendment defense He had nothing to do with the flag because his wife, Martha Ann, flew it, but the upside-down flag was politically acceptable. rebuttal for an “offensive and personal derogatory” sign about former President Trump in a neighbor’s yard.

Currently, there are two Supreme Court justices with wives. symbolically or directly He joined other election deniers, including Justice Thomas’ wife Virginia and Justice Alito’s wife Martha Ann. At the very least, this appears inappropriate and, at worst, it produces predetermined outcomes based on political partisanship.

This is especially concerning given what is pending. Decision on Presidential Immunity. In fact, this calls into question the following results. Trump vs. Andersonunanimously ruling that states cannot determine candidates’ eligibility to vote for federal office.

To be sure, the unanimity was based in part on federalist principles, but it still appears unjust when a Supreme Court justice flies the flag in support of an authoritarian insurrectionist. The veneer of neutrality is peeled away to reveal not a judge, but a fervent partisan judge in judicial garb.

This violates the new rules set by the court. code of conduct, remains unenforced because the courts regulate themselves. Its legitimacy is supported by the papier mache tiger.

The upside-down flag on Justice Alito’s flagpole violates nearly every court ethics code.

first disqualification rule To tell “Judges are presumed to be impartial and are required to be seated unless disqualified.” Alito’s impartiality was shattered. He should be disqualified for failing to avoid “dishonesty and manifestations of dishonesty in all activities.” per canon 2and that he is “unable to perform his duties fairly.” [and] fairly” Kanon 3 This is because an upside-down flag indicates loyalty to a party with a dispute pending in court.

The gist of the partisan and unstable Reverse Flag is “I support”[s] …candidates for public office”. canon 5 That’s because it uses the discredited metaphor of a stolen election that President Trump has concocted. Justice Alito has not refrained from political activity. In this way, the independence of the judiciary is being questioned. per canon 1. This is especially disconcerting because Justice Alito is the third most senior justice on the court.

And what is even more disturbing is that all these laudatory and solemn norms may be rendered meaningless by the following sentence: Disqualification provisions: “The rule of necessity can override the rule of disqualification.”

I can see where this is going from “need” to “need”. Justice Alito refuses to recuse himself from the January 6 riot case and all related issues. If the court refuses to administer and enforce the rules of conduct it has established, not only will its legitimacy be further undermined, but American democracy itself will decline into authoritarianism sanctioned by the court’s complicity.

Democracy is at risk every time unelected judges shield themselves from public scrutiny simply because they are the final arbiters of constitutional disputes. When a judge’s impartiality can be questioned, the finality and predictability that are the bedrock of our democracy become an illusion.

Each branch of government, including state and lower federal courts, has enforceable, binding codes of conduct that ensure fairness, impartiality, and legitimacy. Congress must adopt a binding code of conduct for the Supreme Court. We should right the flag on our democratic principles.

Cedric Marlin Powell is Professor at the Wyatt, Tarrant & Combs School of Law at the University of Louisville. Brandeis Law School.