Last month, The New York Times reported that in January of 2021, about the time the constitutional transfer of power between then President Donald Trump and President-elect Joe Biden was in doubt, an upside-down American flag flew outside the Virginia home of Supreme Court Justice Samuel Alito.

The upside-down American flag has historically been used as a sign of distress. The U.S. Flag Code, Title 4, Chapter 1, Section 8, provides, "The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property." For instance, a military ship in distress at sea might fly its flag up-side to alert fellow mariners that the ship and crew are in peril.

Protesters have flown the U.S. flag upside-down throughout history. Abolitionists protesting slavery in the mid-19th century used it; Vietnam war protesters, and political opponents of Barack Obama flew the inverted flag as a protest of his presidency, reported Politico.

So, what is the big deal about Alito flying the upside-down flag at his home?

Alito is one of nine justices on the highest court of land. The upside-down flag has been co-opted by supporters of Trump who do not recognize the outcome of the 2020 presidential election or the legitimacy of Biden's administration.

The U.S. Supreme Court is scheduled to hear a challenge to the special counsel's ability to prosecute Trump for his role in the Jan. 6, 2021, insurrection at the United State Capitol. Hundreds of men and women violently stormed the building to disrupt the tabulation of the electoral college vote, and, by whatever means, stop Vice President Mike Pence form certifying the election for Biden.

Canon 1 of the Model Rules of Judicial Conduct enacted, in whole or in part, by every state and the federal judiciary provides, "A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."

Can a justice who had a flag flying over his home that symbolized the false narrative that a president's reelection was stolen and an attack on the Capitol was essential to "stop the steal," avoid even the appearance of impropriety?

The rules of conduct that govern every judge in the United States do not apply to the Supreme Court. When the flag flew over Alito's home, there were no codified rules of conduct for Supreme Court justices. Last fall, the U.S. Supreme Court hastily adopted a Code of Conduct for Supreme Court justices. Under growing pressure, the court adopt a code that lacks any means of enforcement.

Last week, Alito announced in a letter to the U.S. Congress that the conduct at his home did "not meet the conditions" as set forth by the Supreme Court's code of conduct for recusal, and the decision to step aside is up to individual justices, reported NPR. Alito wrote, "My wife is fond of flying flags. I am not."

Why do people fly flags? Flags are displayed to show support or loyalty. Alito acknowledged that his wife will hoist a college flag or a professional sports team flag and an assortment of other flags. Flags are a form of expression. Flags are confident reminders of what, or who, you like and support.

That is why a second flag tethered to a pole above an Alito property has caused more concern. This flag flying over Alito's beach house in New Jersey bears "An Appeal to Heaven," which is also a symbol of the "stop the steal" movement.

The reason the judicial code of conduct demands a judge step aside even for the mere "appearance" of impropriety is to ensure trust and respect for the impartially of our legal system. In advocating for the rule of law more than two centuries ago, Alexander Hamilton wrote in Federalist Paper No. 78, "It is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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