On Wednesday, June 5, 2024, retired constitutional law professor and constitutional historian Rob Natelson published an article on the Townhall website analyzing controversies surrounding two judges – U.S. Supreme Court Justice Samuel Alito and Montana Supreme Court Justice Ingrid Gustafson.

Natelson began by discussing criticism directed at Justice Alito over flags briefly displayed on his private property in recent months. An inverted American flag was raised by Alito’s wife to express distress over a neighbor dispute, and an historical “Pine Tree/Appeal to Heaven” banner also appeared. While some January 6th rioters had carried the flags, Natelson noted their uses historically have not been exclusively partisan.

However, Senators Dick Durbin and Sheldon Whitehouse along with some media figures claimed the flags improperly expressed support for former President Trump or insurrection. Natelson argued this was a “rickety” guilt-by-association argument with no element of actual association.

Natelson then turned his attention to Justice Ingrid Gustafson of the Montana Supreme Court. For many years, Gustafson has flown flags prominently displaying left-leaning symbols from her home in Billings, Montana, including during her six-year tenure as a justice.

Flags previously displayed included ones pairing the “peace sign” symbol with a rainbow LGBTQ background, as well as a banner that could represent women’s suffrage or a non-binary flag. Photos published with the article documented the flags. In more recent months, Gustafson changed the flags to feature just peace signs on different color backgrounds.

Comparing the two situations, Natelson found Justice Alito’s actions to be far less concerning than Gustafson’s. The flags at Alito’s home bore no clear partisan significance and only appeared briefly, while Gustafson’s flags directly represented left-wing causes and had flown for years.

Additionally, Natelson noted the Montana Supreme Court’s code of conduct banned actions undermining impartiality or expressing bias, in contrast to the newer U.S. Supreme Court rules not yet adopted at Alito’s time. Gustafson’s long-term flag display near her role as a justice reasonably calls her impartiality into question, according to Natelson.

As evidence, Natelson pointed to a study he published earlier this year finding the Montana high court under Gustafson routinely ruled in favor of left-leaning policy positions. He questioned why only Alito faced attacks when Gustafson’s conduct appears more concerning regarding judicial ethics standards.

In closing, Natelson speculated Justice Gustafson’s career may not have lasted if she had instead proudly displayed pro-Trump banners. He concluded the difference between the criticism of the two justices seems to be their perceived political ideologies.



Source: Townhall