Why the 'inversion of the flag remains a problem' despite Alito’s 'explanation': columnist

Following a New York Times report earlier this week reporting that US Supreme Court Justice Samuel Alito flew an upside down American flag outside of his home after the January 6 attack on the Capitol, top Democratic law makers are calling for his recusal from any cases related to the insurrection.

"Flying an upside-down American flag — a symbol of the so-called 'Stop the Steal' movement — clearly creates the appearance of bias," Senate Judiciary Committee Chairman Dick Durbin (D-Illinois) Durbin told the Hill.

"Justice Alito should recuse himself immediately from cases related to the 2020 election and the January 6th insurrection, including the question of the former President’s immunity in U.S. v. Donald Trump, which the Supreme Court is currently considering. The Court is in an ethical crisis of its own making, and Justice Alito and the rest of the Court should be doing everything in their power to regain public trust, Supreme Court justices should be held to the highest ethical standards, not the lowest.”

READ MORE: Senate Judiciary Committee Chair calls for Samuel Alito’s recusal from January 6 cases

Bloomberg opinion columnist Stephen L. Carter, in a Sunday, May 19 op-ed suggests Alito's claim that the upside down flag "display signaled his wife’s exasperation at her inability even to walk down the street without suffering the frequent and often obscene verbal assaults of neighbors."

The Yale law professor writes, this explanation, if true, "still raises important questions, about both the ethical rules governing judges and the imposition of similar restrictions on their families."

"So let’s suppose that Alito’s tale is correct, and what was really happening was the suburban front lawn equivalent of an online flame war," the Yale law professor writes. "Nevertheless, the inversion of the flag remains a problem."

"There’s nothing in what we might call the ethics of marriage requiring a spouse to surrender the right to many forms of public expression, and we shouldn’t assume that one spouse’s beliefs are the same as the other’s."

READ MORE: Alito tells Fox News story behind his 'Stop the Steal' flag — but critics unconvinced

Carter writes:

But the burden that rests upon the spouse of a public official is heavy, and the one that rests upon the spouse of a Supreme Court justice might be weightiest of all. Even if the significance of the inverted flag has been misconstrued, those restrictions remain the same. Whatever other spouses might be free to do, the ethics that must govern this particular marriage require even the justice’s spouse (and sometimes other family members as well) to bend over backwards to avoid misconstrual.

Carter's full op-ed is available at this link.