Critics accusing Supreme Court Justice Samuel Alito of misconduct for displaying two allegedly “pro-Trump” flags on his property have been notably quiet about a liberal judge’s more clearly partisan and enduring flag display.
In case you haven’t followed the Alito flag flap, the background is that an upside-down inverted American flag was displayed briefly at the Alito family home and an American Revolution “Pine Tree/Appeal to Heaven” banner appeared briefly on their beachfront property. Justice Alito says his wife raised the inverted American flag without consulting him to signify distress in response to a neighbor’s hostile conduct.
Neither pennant is firmly associated with either side of the political spectrum. A few of the pro-Trump Jan. 6 Capitol rioters carried the inverted American flag—but so did leftists protesting America’s decision to protect South Vietnam from Communism. Some people protesting the Supreme Court’s overruling of Roe v. Wade also displayed the inverted American flag.
Despite intermittent use by political groups, the history of the Pine Tree Flag is similarly non-partisan. It first appeared on the masts of American schooners during the Revolutionary War. Currently, it is the official maritime ensign for the Commonwealth of Massachusetts.
Nevertheless, Justice Alito’s critics—among them liberal media figures and Senators Dick Durbin (D.-Ill.) and Sheldon Whitehouse (D.-Conn.)—claim the displays were improper expressions of support for former President Trump and/or for “insurrection.” Their argument is that (1) the two flags appeared on Alito land, (2) a few of the participants in the Jan. 6, 2021 Capitol riot displayed one or the other, and therefore (3) Alito openly supported President Trump or the Jan. 6 riot and should recuse himself from any cases involving the former president.
This rickety argument resembles in some ways the “guilt by association” charges that liberals like Durbin and Whitehouse used to criticize. Except that in this case, there isn’t even the element of association.
But on the other hand . . .
Justice Alito’s critics also are ignoring more serious conduct by a judge on their side of the political divide: Justice Ingrid Gustafson, a liberal judicial activist on the Montana Supreme Court, has been displaying partisan political flags at her Billings, Montana home for a very long time, including her six-year stint as a justice.
For many years, two flags occupied the upper and lower positions on a single pole. The upper one contained the so-called “peace sign,” an exclusive symbol of the international Left. At one time, it was used in demonstrations designed to weaken resistence to Communist regimes. Today some employ it to support Hamas.
On Justice Gustafson’s flag, the “peace sign” was overlaid on what appeared to be the LBGTQ rainbow background.
The lower banner on the Gustafson flag pole featured yellow, white, and purple horizontal stripes and two horizonal lines of stars. This could be interpreted either as the non-controversial “woman’s suffrage” flag or as the controversial “non-binary” flag.
A photo taken earlier this year is available here. However, several weeks ago, the pennants were replaced by two new ones—also displaying leftist symbols. The new upper flag contained the Holtom “peace sign” and the lower displayed the same symbol, but on a blue background. A photo is here.
While writing this essay (Jun. 2), I learned that within the past week she restored the “woman’s suffrage” or “nonbinary” pennant and was now flying a “co-exist” banner—yet another popular piece of left-wing iconography. A photo is here.
Comparing the Alito and Gustafson cases
Even though Justice Alito has received much criticism and Justice Gustafson has received none, an objective comparison between the two cases suggests that Justice Alito—if culpable at all—is far less so than his liberal counterpart.
The Alito banners historically have no partisan significance. By contrast, the designs on the Gustafson flags are clearly and exclusively identified with the international Left. The Alito banners appeared for a very short time, but the Gustafson flags have been flown for years.
There also are moral differences. Justice Alito’s critics claim he violated the U.S. Supreme Court’s Code of Conduct. But when the flags appeared on his property, that code had not yet been adopted. But the Montana Supreme Court’s Code of Judicial Ethics has been in effect throughout the entire time Justice Gustafson has been on the bench.
That code requires judges to conduct themselves so they do not communicate bias to parties or potential parties. For example, Rule 3.1 of the code states that “a judge shall not . . . participate in activities that would appear to a reasonable person to undermine the judge’s . . . impartiality.” And the “official comment” adds, “Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge’s official or judicial actions, are likely to appear to a reasonable person to call into question the judge’s integrity and impartiality.”
When a judge displays partisan symbols on his or her property over an extended period of time, it is “likely . . . to call into question the judge’s . . . impartiality.”
As I documented in a study published earlier this year, while Justice Gustafson has been in office her court has issued many decisions with distinctly left-right political implications—and in nearly all, the court handed victory to the “left” side. To my knowledge, she did not recuse herself from any of those cases.
Why is Alito being Attacked?
Although Justice Gustafson’s conduct would seem to be the more serious, only Justice Alito has been attacked. The only relevant difference is this: Justice Alito—sometimes imprecisely labeled a “conservative”—is a traditional judge on a centrist court. Justice Gustafson is a left-leaning member of a left leaning court.
But how long do you think her judicial career would have lasted if she had displayed a MAGA flag?
Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and a former constitutional law professor at the University of Montana. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015) and of the 2024 study, “The Montana Supreme Court: An Institution in Need of Reform.”