False Flag: Alito Incident Shows Need for an Enforceable Code of Ethics in Court

The news that Justice Samuel Alito’s wife flew the United States flag upside down alongside radical Trump supporters in 2021 should remind us that we still need an enforceable code of ethics for the Supreme Court.

Do you remember the second half of January 2021? At this point, around sixty courts had ruled against former President Donald Trump’s false election fraud allegations. Some of the verdicts came from judges he appointed.

But on January 17, 2021, and for two or three days, Judge Alito’s flag joined the upside-down flags of extremists who continued to insist that the election was stolen. A few weeks later, Alito joined Justice Clarence Thomas in the case involving Trump’s challenge to the election results in Pennsylvania, rejecting the court’s decision not to hear Trump’s claims. Like Alito’s vote, Thomas’s was placed under a cloud. Before he voted, his wife had actively supported Trump’s claims of fraud, texting Trump’s chief of staff about 29 times and calling the election of President Joe Biden “the greatest robbery in our history.”

Of course, neither Alito nor Thomas had the right to suppress their wives’ political speech, but they had to decide whether this predicament meant they had to recuse themselves from voting on cases involving a man publicly supported by their spouses. If they had told their wives that they should have refused, they might have been persuaded to stay out of court matters.

But neither Alito nor Thomas had any incentive to do so. Short of impeachment, there was nothing anyone could do about their behavior except further weaken their esteem for the Supreme Court. And that’s because the Supreme Court of the United States remains the only federal court without an enforceable code of ethics.

Yes, the court published its first written code last year. But that code included no mechanism for enforcing it and no consequences for violating it. Without a code with consequences, Chief Justice John Roberts has no choice but to do what he has no doubt already done: implore the justices to avoid impropriety or even the appearance of impropriety.

That is not enough. The court should set up an ethics committee for itself. To avoid the court getting into trouble as a result of frivolous complaints, the types of complaints and the people who can make them could be limited. Membership could be divided equally between members appointed by the Court and members appointed by the other branches. His rulings could face a positive or negative vote by the full court. The consequences of violations should at least include resignation and, if necessary, other penalties.

Let’s think for a moment about how the Code might affect Justices Alito and Thomas, given their wives’ activities. The law states that a judge is disqualified from hearing a case if the judge’s impartiality could reasonably be questioned. While we might assume that judges could, at great expense, achieve neutrality against their spouses’ publicly stated interests, would it surprise us that a reasonable person could question their neutrality?

But in Alito’s case, it might turn out that neither the judge nor his wife knew that Trump supporters were flying upside-down flags. Perhaps the Alito flag was simply a sign of concern over feelings of oppression from vulgar, abusive, and intimidating neighbors. There appears to be some basis for this belief in what Alito told The New York Times, but we will never know whether this is the correct view, because only partisans have interpreted the event for us. A clean bill from a credible commission could help resolve the Alito issue. While things are even more concerning in Thomas’ case because of his wife’s undoubted commitment, we will never know what this will mean for Thomas because without an ethics committee, their activities and his potential conflict will never be investigated.

What to make of these cases, and more importantly, could be better clarified by a commission. Ethical questions have been raised about judges of all stripes and have existed since the Founding Fathers, but current politics have put the current Supreme Court under scrutiny. A commission could protect the court from attack by acquitting the innocent and creating consequences for the guilty.

Thomas G. Moukawsheris a former complex litigation judge in Connecticut and former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book,The Common Mistake: Unnecessary Complexity in Dishes and 50 Ways to Reduce It.

The views expressed in this article are the author’s own.