Sue Lani Madsen: Selective outrage undermines U.S. Supreme Court

When Martha-Ann Alito flew her star-spangled banner upside down on the family’s front yard flagpole for a few days in late January 2021, it was the culmination of a nasty neighborhood kerfuffle surrounding the 2020 Biden v. Trump presidential election. Her husband, Justice Samuel Alito, says he had nothing to do with it.

We are long past the era when married women were only mentioned in the press by their husbands’ names, and husbands were assumed to control their wives’ opinions. That hasn’t stopped the left-wing outrage machine from grasping onto his wife’s actions as an excuse to call for Justice Alito to recuse himself from cases involving elections.

The basic facts are simple. It’s the symbolism and judicial ethics that are in question.

As we slog through Biden v. Trump – The Sequel, Mrs. Alito’s inverted flag raising has abruptly become subject to retroactive interpretation. According to the New York Times in a May 16 article, flying a flag in the traditional distress signal position must now be interpreted as a “startling symbol” for the “stop the steal” campaign.

The evidence for that claim is nonexistent, according to Kimberly Strassel in a Wall Street Journal column. She writes, “a search of the Factiva news database turns up no articles containing the phrases “stop the steal” and “upside down flag” before the Times report. She calls the attempts of activists over the past several weeks as “so obviously a smear job that it could have the opposite of the intended effect” to cast doubt on the court’s decisions and create fear of chaos going into the 2024 election.

According to the U.S. Flag Code, the symbolism of the upside-down flag is a “signal of dire distress in instances of extreme danger to life or property.” It was used by protesters in the summer of “fiery but mostly peaceful” destruction following George Floyd’s death in 2020 as well as by some of the rioters on Jan. 6 attempting to disrupt the election certification in 2021.

Now, 3½ years later, we have another attempt to interfere with democracy in what appears to be an insurrection-like campaign by progressive media to undermine the legitimacy of the U.S. Supreme Court.

Twice in the last week, national columnists published under the Other Voices label in the Opinion section of this newspaper have been flag-bearers for the disinformation originally promoted by the New York Times and calling Mrs. Alito’s actions grounds for claiming an ethics violation by Justice Alito by hinting at partisan bias in the household.

The columns by Peter Jensen of the Baltimore Sun and syndicated columnist Jennifer Rubin expanded on the New York Times’ misinterpretation of the symbolism. They repeat the New York Times’ claim that an upside-down flag is the preferred symbol of the “stop the steal” movement and demand Justice Alito recuse himself from any case involving former President Trump.

Until November , there was no Code of Conduct for U.S. Supreme Court justices. The justices decided amongst themselves what counted as crossing the ethical line.

Justice Ruth Bader Ginsburg set the recent precedent. She saw no reason to recuse herself from ruling on the case of the Trump tax returns after her vocal anti-Trump statements during the 2016 election campaign. Similarly, Justice Alito has no reason to step away from performing his judicial duties related to cases involving elections.

Flag code violations by using a national symbol of distress in the context of a petty local quarrel are an exceptionally nerdy choice of weapon for a judicial ethics debate.

There are so many meatier issues one could dig into. Republicans have highlighted a trip to Israel gifted to Justice Ginsburg by a rich friend who had business in front of the court. Democrats pounced on Justice Clarence Thomas for traveling on vacations with a rich friend, although his friend did not have business in front of the court.

Even with the new Code of Conduct, activities by spouses of the justices are not controlled. We no longer treat husband and wife as a single political unit like the era before ratification of the 19th Amendment giving women the right to vote on their own.

Ginni Thomas’ consulting firm is a subject of ongoing debate. Even the New York Times in 1997, before it devolved into a partisan propaganda pusher, reported on Justice Ginsburg’s failure to disqualify herself from cases involving companies in which her husband, Martin Ginsburg, had a financial interest via an individual retirement account and eventually sold the stock.

The new Code of Conduct will help hold justices accountable far better than the old boys and girls club method of deciding what counts as an ethical lapse. It may also help rein in legacy media shenanigans and selective outrage by defining a standard for whether an issue deserves hurricane force coverage. Martha-Ann Alito’s flag was barely worth a minor breeze.

Clearly the United States is a nation in distress. Given the chaotic rage displayed across America over the past three years, perhaps all the flags should be flown upside down.

Contact Sue Lani Madsen at rulingpen@gmail.com