How Can Just. Alito Be So Foolish to Fly Upside Down American Flag?

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The controversy about the decision to fly an upside-down American flag outside the home of Justice Samuel Alito recalls St. Paul’s admonition that while some things may be lawful, “not all things are helpful.”

I can offer no opinion as to whether the flag display at the justice’s house was actually unlawful. I won’t even opine whether my flying the flag upside-down flag at my house would have constituted a violation of the Code of Ethics that binds me and all federal judges — except the justices.

To me, the flag issue is much simpler. The fact is that, regardless of its legality, displaying the flag in that way, at that time, shouldn’t have happened. To put it bluntly, any judge with reasonable ethical instincts would have realized immediately that flying the flag then and in that way was improper. And dumb.

The same goes with the flying of an “Appeal to Heaven” flag at Justice Alito’s vacation house along the New Jersey shore. Like the upside-down flag, this flag is viewed by a great many people as a banner of allegiance on partisan issues that are, or could be, before the court. 

Courts work because people trust judges. Taking sides in this way erodes that trust.

In four decades as a federal judge, I have known scores, possibly hundreds, of federal trial and appellate judges pretty well. I can’t think of a single one, no matter who appointed her or him, who has engaged or would engage in conduct like that. You just don’t do that sort of thing, whether it may be considered over the line, or just edging up to the margin. Flying those flags was tantamount to sticking a “Stop the Steal” bumper sticker on your car. You just don’t do it.

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Assuming it is true that it was Justice Alito’s wife who raised the inverted American flag, apparently in response to some provocative behavior from a neighbor, I do sympathize. (How the “Appeal to Heaven” flag came to be flown at his house is not known.) Being a judge’s spouse is not easy. On the one hand, a person should not have to forfeit the right to free expression at the marriage altar. On the other hand, it is not unreasonable to expect a spouse to avoid embarrassing a loved one, or complicating his or her professional life. This is true not only for Supreme Court justices, but for people in many walks of life.

Let me offer an example. About 25 years ago, I presided over a death penalty case involving a nurse charged with murdering several of her patients at a Veterans Affairs hospital in Western Massachusetts. It was a tough case, regularly on the front pages of our local papers. Let’s say my wife was strongly opposed to the death penalty and wished to speak out publicly against it. I’m not saying this is true, but let’s imagine it. The primary emotional current in our marriage is, of course, deep and passionate love, but right next to that is equally deep and passionate respect. We would have had a problem, and we would have needed to talk.

In this hypothetical situation, I hope that my wife would have held off making any public statements about capital punishment, and restrained herself from talking about the issue with me, while the trial unfolded. On the other hand, if my wife had felt strongly that she needed to espouse her viewpoint publicly, I would have had to recuse myself from presiding at the case, based on the appearance of partiality.

However this issue came out, by the way, I certainly would not have had the temerity to claim that my wife and I never discussed the problem. Any protestation of this sort would have provoked raucous laughter from our circle of friends. They know very well that we talk about everything. 

Why Doesn’t My Husband Respect My Opinion About Moving?

 

Did Justice Alito and his wife discuss the issue of the upside-down flag before it went up? I don’t know, of course. But I do know they should have. And I know that some other method should have been found to express the couple’s unhappiness with their neighbor’s possibly crummy conduct.

The court recently adopted an ethics code to “guide the conduct” of the justices. One of its canons states that a justice should “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” That’s all very well. However basic ethical behavior should not rely on laws or regulations. It should be folded into a judge’s DNA. That didn’t happen here. The flag display may or may not have been unlawful, but as far as the public’s perception of the court’s integrity, it certainly was not helpful.

Michael Ponsor is a senior judge on the U.S. District Court for the District of Massachusetts. He was appointed by President Bill Clinton in 1994 after serving 10 years as a federal magistrate judge.

The New York Times