The flag, the court and a question of ethics

We all have a stake in the controversy involving Trump symbols at a justice's homes

May 25, 2024

Flag Day Parade, 1992, in Troy, N.Y., when we all embraced our nation’s banner. (Record photo by Tom Killips)

In the early 1990s, I became the newspaper editor in the little city that proudly claimed to host America’s biggest Flag Day parade. On the Saturday closest to June 14 each year, my wife and I would board a float featuring an eight-foot billboard replica of my newspaper’s front page, and toss candy as we waved to the tens of thousands of people lining the streets of Troy, N.Y.

It was a joyous event, but that first year in the parade I couldn’t get out of my mind a column written by one of my predecessors, about an uncle who had once been given the great honor of carrying the American flag at the head of a parade. Unfortunately, the story reported, the uncle had neglected to secure a holster to hold the flagpole, so he walked the entire parade route with the pole beating against his belt line. This led to an awkward injury that ultimately cost the uncle his life. “Some people called him a fool,” my predecessor wrote, “but I consider him a patriot.”

I’d go with fool, personally. But the story has always stuck with me as the quintessential example of how deeply Americans have held their allegiance to the flag. There’s a lot of history to this adoration of a symbol. Our national anthem was inspired by the sight of the stars and stripes waving over a fort protecting Baltimore despite a relentless British assault during the War of 1812; the Marine Corps Memorial near Arlington National Cemetery memorializes the raising of the flag at Iwo Jima near the successful end of the American campaign in the Pacific during World War II. The flag hangs in school classrooms, flanks our leaders when they appear in public and drapes coffins of fallen heroes. It is the one emblem of the United States recognized globally and venerated by all the nation’s citizens.

Except now that’s not so much the case. The last time almost everybody seemed to embrace the American flag and eagerly display it without partisan intent was just after the 9/11 attacks. Then, somehow, it was mostly co-opted by the right.

Of course, there’s a bit of political history to today’s reality. The current identification of the flag as a conservative symbol likely began with Richard Nixon ordering his staff to wear flag lapel pins — the better to denigrate George McGovern, the antiwar candidate, as unpatriotic — and it was solidified after George H.W. Bush repeatedly bashed his 1988 presidential opponent, Massachusetts Gov. Michael Dukakis, for vetoing a state law that would have required every student to say the Pledge of Allegiance in school daily. As he campaigned in 2008, Barack Obama initially refused to wear a lapel pin, saying it had become “a substitute for true patriotism,” but in the face of criticism, he reversed course, and usually wore a pin while on the stump. Yet he grumbled during a debate, “This is the kind of manufactured issue that our politics has become obsessed with.”

Flag-wavers these days are usually assumed to be Donald Trump followers — a notion that sticks in the craw of a lot of progressive patriots. How can we cede our nation’s symbol to any group exclusively? It’s especially galling to witness the flag seized as a sort of trademark of someone who doesn’t honor the nation’s institutions or its fundamental principle — namely, respect for the free ballot.

It's not just the left, though, that has been jolted by the flag controversy that has enfolded Supreme Court Justice Samuel Alito. Only recently have we learned, via reporting in The New York Times, that in the days after Jan. 6, 2021 – when Trump summoned angry followers to the Capitol and let them attack and overrun it in an effort to overturn the election he had lost — an inverted American flag, which the insurrectionists waved as a mark of loyalty to Trump, flew outside Alito’s home in a Washington suburb. Its display there even as the Supreme Court was considering cases involving Trump’s election denialism suggests Alito was far from impartial in his review — that he was quietly a supporter of the “Stop the Steal” campaign.1

The Trumpets’ adoption of the inverted flag was a uniquely upsetting message. The United States Flag Code, adopted by Congress in 1942, specifies that the flag should be flown upside-down only “as a signal of dire distress in instances of extreme danger to life or property.” Was the fair election of Joe Biden such an instance? Only, perhaps, to those whose allegiance to Donald Trump exceeds that to the Constitution he swore an oath to uphold.2

This week we learned, again from the Times, that another symbol of the anti-democratic Trump resistance, the so-called Pine Tree flag, flew repeatedly last summer at Alito’s beach home. Most of the religious zealots who nowadays fly that flag, which features the words, “An Appeal to Heaven,” believe that God has anointed Trump to lead America in the spirit of Christian nationalism.3

The justice blamed his wife when stories surfaced about the first flag; he hasn’t commented on the second. Nor has he recused himself from considering the election law cases that are now before the Supreme Court, which will likely determine whether Trump will face any accountability for his election lies — which have so far led to charges against more than 1,200 of his followers, with more than 460 imprisoned for their roles in the Trump-inspired attack on the Capitol.

Some defenders of Alito say that there’s no reason that he shouldn’t continue to review Trump election cases — that every judge has biases, but that good judges lay aside all those biases when they hear a case, and rule solely on the basis of the law. I’ve given a lot of thought over the years to the question of bias, since avoiding the perception of bias was essential during the decades I was a newspaper editor. That’s why my home never displayed partisan symbols — a sensibility that my politically astute wife well understood, apparently unlike Justice Alito’s — and it is why I am even now, as a retired journalist, not a member of a political party. You would think a justice of the Supreme Court should have standards at least as high as those of an upstate newspaper editor, wouldn’t you?

In fact, symbolism matters — obviously, since there’s little intrinsic value to a flag, which is merely a design on a piece of cloth until it is interpreted as meaning something to many. And appearances matter. Alito, the senior justice, has now laid a clear perception of bias on the nation’s top court. Can we really believe that a guy whose home flies pro-Trump flags will rule independently on cases involving Trump? He gives us no reason to trust him in that regard.

While some Republican senators criticized Alito’s judgment in flying the flags — a “bad decision,” said John Thune; a “bad image,” said Lindsey Graham; “very unfortunate,” said Mitt Romney — the muted response is what you might expect after any politician does something that’s embarrassing to the party. Yet a judge isn’t supposed to be a politician, and dodging accountability for embarrassment in the manner of George Santos isn’t what we ought to expect from members of the court that is the nation’s final arbiter of laws. Alito’s inaction in the face of these questions leads to the inevitable conclusion that he and the colleagues who defend him view their court as little more than a tiny legislature, its nine partisan members serving for life and operating outside the reach of voters.4

That’s a tragic conclusion for America’s shaky democracy. Precisely because it is expected to operate independently and with ultimate adherence to the Constitution, no institution of government should more carefully guard its honor than the Supreme Court. Yet it wasn’t until last year, when journalists uncovered several examples of dubious ethical behavior by justices — mostly involving Alito and Justice Clarence Thomas — that the court wrote some ethical guidelines for itself. Still, there is no mechanism to enforce the new ethics code, nor do any clear consequences face justices who ignore it.

Beyond the newly-reported flag controversies, Alito drew notice for taking a luxury fishing trip on the dime of a billionaire who had a case before the court, and for apparently leaking word to conservative activists about a case that hadn’t yet been released. Thomas has benefited from another billionaire’s generosity: travel, gifts including a house for his mom and tuition for a grand-nephew, and an unrepaid loan for an RV; he also has been criticized for not recusing himself on cases involving Trump’s “Stop the Steal” campaign, in which his wife played a key role. Justice Sonia Sotomayor has drawn notice because her staff encouraged institutions where she spoke to buy copies of her book (a minor offense, in the context of the others just noted). Justices Neal Gorsuch and Brett Kavanaugh have raised eyebrows for attending events and socializing with right-wing politicians and figures who may have business before the court.5

If those incidents had involved judges on other federal courts, rather than the Supreme Court, the conduct could have been reviewed under terms of a 1973 code that sets up punishments for offending judges, depending upon the severity of the ethical breach — a public or private reprimand, a temporary bar from hearing new cases or disqualification from an existing case, or even referral for possible impeachment by Congress.

Without that kind of enforcement, and with the Supreme Court dithering, we’re left with only partisan responses that do nothing to help rebuild the court’s damaged reputation. “I just think Democrats are determined to harass members of the Supreme Court,” said Sen. John Cornyn, a Texas Republican. Sen. Sheldon Whitehouse, a Rhode Island Democrat on the Senate Judiciary Committee, said that Alito should “absolutely” recuse himself. “I think the question is: How many MAGA battle flags does the Supreme Court justice have to fly until the rest of the court takes it seriously?” he asked, on CNN.

How ironic that the controversy involves the symbol of a nation “indivisible,” to which we are taught to pledge allegiance. We may not be able to do anything about the Supreme Court’s intransigence on ethics, but we who consider ourselves progressive patriots can, in fact, do something to stop the steal of our flag. Like this: On June 14, which is Flag Day, I’ll once again hang the stars and stripes outside my home. It’s just a symbol, of course — a banner of 13 red and white stripes, a field of blue with 50 stars — and its display is a small gesture that perhaps only I will recognize for what it means. Namely, that I’m not about to let the flag slip into the sole custody of one side in a divided country. It’s my flag, too. Right-side up, certainly.

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NEWSCLIPS FROM THE UPSTATES

Dispatches from our common ground *

Wherein each week we look around what we call the nation’s Upstates — those places just a bit removed from the center of things — to find illuminating news and intriguing viewpoints, which you might not otherwise see.

This week, we share reporting published here:

Madison, Wisc. (Green Bay Press Gazette, greenbaypressgazette.com)
Wilmington, N.C. (Wilmington Star News, starnewsonline.com)
Norman, Okla. (The Oklahoman, oklahoman.com)
Asbury Park, N.J. (Asbury Park Press, app.com)

NOTE: The complete “Newsclips from the Upstates” section, and The Upstate American Midweek Extra Edition, which is sent to email boxes on some Wednesdays, are available only to paid subscribers. Thanks for your support!

WISCONSIN

Researchers find 4,500-year-old canoe

In a Wisconsin lake, researchers have discovered several dugout canoes from thousands of years ago — including one that is apparently 4,500 years old. Sophie Carson of the Milwaukee Journal Sentinel reports that artifacts from an entire flooded village could lie at the bottom of the lake. Archaeologists believe that communities would have deliberately sunk their canoes in shallow water just offshore in the fall to preserve them through the winter, returning to them in spring. "You are 2,000 years before farming,” the state archeologist said. “There's no gardening; it's 2,000 years in the future. They're 2,000 years before the first burial mound is built." The canoes span millennia of human progress and give clues to shifts in the environment.

NORTH CAROLINA

Catch a flounder? Throw it back

Anglers in the Southeast love to fish for flounder: It can be caught from shore without a boat, and its mild flavor makes it a favorite on dinner tables. But North Carolina officials have decided that there will be no recreational fishing season for flounder in the state this year, reports Gareth McGrath in the Wilmington Star News, because the population of the species is so depleted. Regulators hope the step will enable the species to rebound, but anglers are upset: Neighboring states aren’t responding as aggressively as North Carolina is. Recreational fishermen and commercial fishermen blame each other for depleting near-shore flounder populations, McGrath reports, but climate change is surely a factor.

OKLAHOMA

State still targeting ex-teacher who covered bookshelves

One day in 2022, Norman High School teacher Summer Boismier covered the bookshelves in her classroom with red butcher paper, and affixed a sign: “Books the state doesn’t want you to read” — and also posted a QR code for the Brooklyn Public Library. M. Scott Carter of The Oklahoman reports that Boismier was reacting to a state law that targeted the teaching of critical race theory. Her principal said that she was pushing a “liberal political agenda,” and that while Boismier didn’t endorse any books, some of the volumes in the library’s card catalog contained “explicit sexual content and racist concepts.” Boismier resigned under pressure that summer; now she works at the Brooklyn library. But the state is moving ahead with permanent revocation of her teaching license. There will be a hearing at the end of June, about a year after an assistant attorney general ruled the Oklahoma State Department of Education had failed to prove that Boismier had violated any state law.

NEW JERSEY

Beach erosion prompts space restriction

Jersey Shore communities that are popular summertime destinations are struggling to contend with the impact of beach erosion, which is making favorite spots less enjoyable for visitors. Now, reports Juan Carlos Castillo in the Asbury Park Press, some communities are restricting the size of beach umbrellas and banning tents. With less beach space, fewer people can go to the beach, unless space is economized by restricting structures that take up space. "The size of our real estate has been shrinking and we want to make sure that we get the most bang for our buck for all the people who would like to come to the beach," one mayor said.

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