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Flag displays at Justice Alito's homes concern judicial watchdogs

LEILA FADEL, HOST:

Supreme Court Justice Samuel Alito is facing questions about his ability to be impartial on cases related to the attack on the Capitol on January 6, 2021. That's because of flags that The New York Times reports were flown outside two of Alito's houses. One is a symbol of Christian nationalism known as the Appeal to Heaven or Pine Tree Flag. Some of the rioters who stormed the Capitol carried it. The Times reports it's been seen on a pole outside Alito's New Jersey beach house. The other is an upside-down American flag, which has become a symbol for the Stop the Steal movement, a movement that pushes the lie that the 2020 election was stolen from Donald Trump. That flag was reportedly flown outside the justice's home in Virginia days after the attack on the Capitol.

Joining us to talk about all this is Charlie Geyh. He's a professor of law at Indiana University Bloomington and teaches about judicial conduct and ethics. Good morning.

CHARLIE GEYH: It's great to be here. Thanks.

FADEL: Thank you for being here. So if these flags are flying outside Alito's homes, what does this say about the justice and the ethical code that he should adhere to?

GEYH: The starting point, of course, is that we all have our points of view. We all have our opinions. We all have our biases. And there's no problem with that. But a judge is different. A judge is supposed to struggle against them. A judge is supposed to do what he can to keep as impartial as possible. And so we have a code of conduct that the Supreme Court recently adopted for itself that includes things like don't support or oppose candidates for public office, and don't - you know, and act at all times in a manner that promotes public confidence in your impartiality.

And the point of those rules is not to imply that judges are perfectly impartial or to imply they don't have opinions, but that - the point is to stay out of the political fray. The good judge keeps that at a distance. And when you, you know, don't do that, when instead of struggling against your biases, you celebrate them - you run them up the flagpole, literally - it creates perception problems, and it really suggests a level of commitment to, you know, the politics of the issues the judge is going to be deciding that are troublesome.

FADEL: And it's a really divisive time in the country. And the court is expected to rule soon on a case that could affect several January 6 convictions and Donald Trump's immunity case. Do these flags create the perception that Alito has a conflict of interest in these cases?

GEYH: You know, I think the - conflict of interest is a tough term to use, certainly a bias. And the disqualification statute talks in terms of judges needing to disqualify themselves if their impartiality might reasonably be questioned or if they have a bias in favor or against a party. And when he is flying a flag that is - signifies his support for the Trump administration, for the Stop the Steal campaign, it's impossible not to assume that he has, you know, an axe to grind. And again, getting back to my point before, I mean, certainly, does it surprise people that judges would have opinions? No.

FADEL: You're right.

GEYH: Does it surprise you that you would be so vested in them that despite being a justice who you know is going to decide issues related to it, you will fly them on a flag? That, I think, reflects a level of commitment or bias that is troubling.

FADEL: I just want to note here that we did reach out to the Supreme Court for comment and haven't heard back. Alito did tell The New York Times that his wife briefly put the upside-down flag up during a dispute with a neighbor. And he declined to comment about the Appeal to Heaven flag. I mean, does he owe the American public an explanation here? And as you point out, there's a code of conduct. Should he disqualify himself over this, or is this his First Amendment right?

GEYH: The two aren't incompatible. In other words, I'm not disputing his First Amendment right to say things.

FADEL: Right.

GEYH: But I think it's important to understand that you have a right to say and do a lot of things that are not right to say or do. And if you are a justice and you do say things, even if it is your right, that doesn't mean that, you know, the rights of litigants don't take precedence - the rights to a fair proceeding - and that, you know, the judge must therefore disqualify himself when it's appropriate.

And so I think, yes, you know, in a normal world, I would say that the justice should disqualify himself, and I would be pretty - you know, pretty ardent about that. I mean, by saying in a normal world, I'm saying that the Supreme Court recently, when it adopted its code, basically went out of its way to say how sparingly it was going to, you know, use disqualification rules because it wanted all nine justices to participate. And, you know, I - yeah, I think that's a problematic viewpoint that if what you're saying is I - we're going to diminish disqualification rules so that Justice Alito can participate and potentially cast the decisive vote in favor of a cause that he is in favor of supporting, it's trouble.

FADEL: Charlie Geyh is a law professor at Indiana University Bloomington. Thank you so much for joining us and giving us your insights.

GEYH: My pleasure, and happy birthday.

FADEL: Thank you. Transcript provided by NPR, Copyright NPR.

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Leila Fadel is a national correspondent for NPR based in Los Angeles, covering issues of culture, diversity, and race.