Justice Alito would be disqualified from January 6 cases if he were on a lower court but SCOTUS's rules are 'merely performative,' expert says

Justice Alito's flag incidents raise concerns about his neutrality in January 6 cases and underscore the limitations of SCOTUS's new ethics code.

• Justice Samuel Alito has faced criticism for displaying pro-Trump flags at his properties.
• The incidents would disqualify him from Jan. 6 cases in a lower court, but SCOTUS rules are more lenient.
• SCOTUS's code of ethics is "merely performative," a legal ethics professor told BI. 

Supreme Court Justice Samuel Alito has been under fire for displaying pro-Trump flags outside his properties.

The flags would have disqualified him from working on January 6 cases if he were on a lower court because SCOTUS's rules are "merely performative," a legal ethics professor told Business Insider.

"The flying of each of these two flags — and definitely the display of both flags — clearly calls into question Justice Alito's impartiality in any case relating to January 6, including but not limited to the case relating to the former president's complete immunity arguments," Doron Kalir, a legal ethics professor at Cleveland State University, told BI.

An "Appeal to Heaven" flag, used by January 6 rioters, was flown outside Alito's New Jersey vacation home last summer, The New York Times reported on Wednesday. The white flag, which features a pine tree under the words "an appeal to heaven," has been around since the Revolutionary War, but in recent years it has become a symbol of "Stop the Steal" Trump supporters who want a more Christian government.

Alito downplayed the flag's meaning on Wednesday. "It's George Washington's flag," he told CNN. "It goes back to the founder's era. I've always flown that flag."

The news of the Pine Tree flag came just a week after it was reported that another controversial flag was displayed outside Alito's Virginia home in January 2021, shortly after the Capitol riots. In this case, it was an upside-down American flag, frequently used by rioters who falsely claim that Trump was the true winner of the 2020 election.

Alito blamed his wife for the upside-down flag, saying she had placed it that way in response to a spat with a neighbor.

Kalir explained that the Judicial Code of Conduct, which applies to all federal and state judges in the country, requires a judge to remove themself from any proceeding in which their impartiality might reasonably be questioned — particularly when the judge has made a public statement, like the flying of partisan flags, that would appear to commit them to a certain side in the case.

But notably, Kalir said, the Supreme Court does not abide by this code of conduct, and, in fact, had no code of ethics until a few months ago.

When SCOTUS finally created its own code in November 2023, it included the standard that a judge should recuse themself from a case where their impartiality could be reasonably questioned. But, unlike the code for all other judges, SCOTUS's new code did not include the example about public statements, instead stating "the rule of necessity may override the rule of disqualification."

In other words, if there's no one to replace the judge, the judge does not have to disqualify themself.

"And, beyond that, the new Supreme Court Code is merely performative — no one can enforce it, and the Justices are not bound by it in any meaningful way (other than the Honor System, which doesn't seem to work recently in that Court)," Kalir said.

Democrats and some GOP senators criticized Alito for the upside-down flag, with Senator Lindsey Graham calling it a "mistake" and Senate Republican Whip John Thune saying it was a "bad decision," CNN reported.

Representatives for the Supreme Court did not immediately respond to Business Insider's request for comment.