Critics need to leave the Supreme Court “alone,” Senate Minority Leader Mitch McConnell (R-Ky.) said on May 21. The comment came days after Justice Samuel Alito acknowledged that his wife briefly flew a U.S. flag upside down outside their Virginia home 11 days after the security breach at the U.S. Capitol on January 6, 2021.
Flying the American flag upside-down has come to be known as a symbol of distress or as a protest. After January 6, supporters of then-President Donald Trump borrowed the symbol as part of the “Stop the Steal” movement to protest irregularities they claim plagued the 2020 election, as well as the decision by Congress to certify the election of President Joe Biden.
President Trump, a Republican, and President Biden, a Democrat, are set to square off again in the upcoming Nov. 5 election.
Federal law contains an unenforceable provision stating the American flag “should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.” There is no actual penalty prescribed for flying the flag upside down.
“It seems to me there are nonstop attacks on the Supreme Court, week after week after week, so I’m not going to dignify that with a response,” the senator said at his weekly news conference. Mr. McConnell had been asked if displaying the flag that way was appropriate and if Justice Alito should recuse himself in any cases about the 2020 election.
“We need to leave the Supreme Court alone, protect them from people who went into their neighborhoods and tried to do them harm. Look out for the Supreme Court — that’s part of the job of the administration,” Mr. McConnell said.
Justice Alito said the display of the inverted flag was connected to conflict with neighbors, not to the congressional security breach, which Democrats label an “insurrection.”
“I had no involvement whatsoever in the flying of the flag,” Justice Alito told The New York Times, which published a photograph of the flag dated Jan. 17, 2021. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs,” he said.
The justice told Fox News that a neighbor had erected a “[expletive] Trump” sign near a school bus stop used by the couple’s children. The neighbor also put up another sign blaming the justice’s wife for the events of January 6 and used profanity in her presence.
Justice Alito said his spouse was distraught and displayed the flag upside down “for a short time.”
Rowdy protests rocked the neighborhood of Justice Alito and other conservative Supreme Court justices in 2022 after a draft court opinion written by Justice Alito overturning Roe v. Wade was leaked. Activists protested outside the Alitos’ home in Alexandria, Virginia.
On June 8, 2022, Nicholas John Roske was arrested for attempting to assassinate Justice Brett Kavanaugh at his Maryland home. Mr. Roske reportedly said he wanted to kill the justice to prevent him from voting to overturn abortion rights and gun control laws. Later that month, Mikeal Deshawn Archambault was arrested for threatening on social media to “kill everyone” at the Supreme Court with an AK-47 rifle.
Justice Alito’s admission that the flag flew the wrong side up a week and a half after the events of January 6 has led to an escalation in Democrat rhetoric against the court, which currently has a 6-3 conservative majority. Six of the justices were appointed by Republican presidents, while three were appointed by Democrats.
Democrats claim the flag incident is proof that Justice Alito, 74, who was appointed in 2006 by Republican President George W. Bush, cannot be trusted to be impartial in his rulings. Democrat lawmakers on Capitol Hill are demanding that the justice recuse himself from cases related to the 2020 election and to January 6, including a case the Supreme Court is currently deliberating about President Trump’s legal immunity in an election subversion case.
On the same day as Mr. McConnell spoke, 45 House Democrats sent a letter to Justice Alito asking him to recuse himself “from any further participation in the cases of Trump v. United States, Fischer v. United States, and any other cases that may arise from the events surrounding January 6 or the 2020 election.”
“It is incontrovertible that at the time the upside down flag flew from your front lawn, ‘Stop the Steal’ activists had adopted the inverted flag as their symbol of protest. Their belief that widespread election fraud had thrown the election from former President Trump to then President-Elect Biden has never been supported by any evidence.”
The Supreme Court heard Trump v. United States on April 25. The case is about whether President Trump enjoys immunity from prosecution for official acts carried out during his time in office.
The court heard Fischer v. United States on April 16. In the case, a former police officer was charged under an accounting reform law after he entered the U.S. Capitol for four minutes on Jan. 6, 2021. The case is being closely watched because once the Supreme Court rules, its decision could affect hundreds of January 6 prosecutions, including one of the cases against President Trump.
Democrats also say the flag incident adds to their arguments in support of the proposed Supreme Court Ethics, Recusal, and Transparency Act (SCERT), which would create a system allowing members of the public to file complaints against justices for violating a proposed code of conduct or for engaging “in conduct that undermines the integrity” of the court. It would empower a panel of lower court judges to investigate complaints against the justices and order disciplinary actions. The Senate Judiciary Committee approved the bill on a party-line vote in July 2023.
The Epoch Times has reached out to Justice Alito for comment.
