Flag with Jan. 6 ties was flown outside Newby home following Alito controversy

A flag with connections to the Jan. 6 insurrection that was at the center of a controversy involving the U.S. Supreme Court was flown outside a beach home owned by North Carolina Supreme Court Chief Justice Paul Newby’s wife.

The flag, called the “Appeal to Heaven” or Pine Tree flag, has its roots in the Revolutionary War but has become notable in recent years for its presence among rioters at the Jan. 6 insurrection and its connections to the Christian conservative movement.

It was also flown outside a home owned by U.S. Supreme Court Justice Samuel Alito, prompting calls for him to recuse himself from cases involving former President Donald Trump. Republican Lt. Gov. Mark Robinson of North Carolina has also flown the flag outside his office building in downtown Raleigh, The News & Observer reported.

Newby, a Republican who won his election in 2020 by 401 votes, told the N&O in a statement that he was given the flag as a gift before Jan. 6, 2021 and flies it during national holidays such as Memorial Day.

“Until recently, we had no idea of the association of the ‘An Appeal to Heaven’ flag with anything other than its actual history — a history that reminds us to pray for our nation,” he said. “At no point did we intend the display of the flag to be a political statement, only a statement of our faith.”

Charles Geyh, a law professor at Indiana University who specializes in judicial ethics, said the act of flying the flag likely doesn’t rise to the level of breaking the judicial code of conduct — but could endanger the perception of the judiciary as an impartial body.

“The good judge is someone who recognizes that they need to act at all times in a manner that promotes their impartiality,” Geyh said. “... That is undermined by essentially running their ideological perspective up a flagpole.”

Photos obtained by The N&O show the flag flying outside a beach home owned by Newby’s wife, Macon Newby, in Carteret County on May 23, 2024 — the day after the New York Times published its story on Alito flying the flag. That was the Thursday before Memorial Day.

A tipster who wished to remain anonymous shared the photos with The N&O. Using metadata and property records, The N&O was able to authenticate the date and location of the photos as well as the ownership of the home.

Property records for the home, which is in Pine Knoll Shores, indicate that it is owned by an LLC called MTN RE. That LLC is owned by Newby’s wife, Macon Newby, who is also listed as owning a property in Pine Knoll Shores in statements of economic interest filed by the chief justice.

When Robinson flew the flag, his spokesperson said it was in celebration of Halifax Resolves Day, which honors the date that the Fourth Provincial Congress noted its intent to become independent from Britain. That holiday is held on April 12 every year. The flag flew at Newby’s home over a month later.

Judicial ethics

Judges in North Carolina are required to follow the Code of Judicial Conduct, which sets ethical standards for their behavior.

The code gives judges, who are all elected in partisan races, some leeway as it relates to political speech. Judges are allowed to speak at political party gatherings, donate money to political parties and endorse political candidates if the judge is also a candidate.

“While flying a provocative flag that was carried by insurrectionists on Jan. 6 may not be a direct violation of the canons of judicial ethics, it certainly raises questions of judgment,” said Rep. Marcia Morey, a Democrat and former judge.

A section of the Code of Judicial Conduct explicitly states that “the spouse or other family member of a judge or a candidate is permitted to engage in political activity.”

Geyh said that even if it was Newby’s wife who flew the flag, he still bears some responsibility for its implications.

“A good judge should be worried and concerned about the perception they create when something like this is done in their household, where they are every bit as responsible for what goes up the flagpole as their partner,” he said. “I think a good judge would do their best to make that a community decision.”

Discipline decisions, investigations

The Judicial Standards Commission, a group of judges and citizens, investigates ethics complaints against judges. The investigation process is largely confidential and complaints are only made public if the Supreme Court orders public discipline against the judge being investigated.

Six of the 14 judges on the commission are appointed by the chief justice of the Supreme Court. The rest are appointed primarily by the legislature, with the governor also getting two appointments.

ProPublica recently reported that the North Carolina Supreme Court refused to discipline two Republican judges who admitted to breaking the code of conduct. The Judicial Standards Commission had recommended public reprimands of the two judges, one of whom got into a courtroom argument with a defendant that led to a police officer shooting and killing the defendant, ProPublica reported, citing unnamed sources. But the court declined to do so.

Another high-profile case involving the commission was made public last year when Justice Anita Earls, one of only two Democrats on the high court, sued the Judicial Standards Commission over its investigation into comments she made about bias in the courts system.

Earls became the subject of an investigation after she spoke with a legal publication about the lack of diversity among Supreme Court clerks and the elimination of the state’s implicit bias training.

She was informed her comments may have violated part of the Code of Judicial Conduct, which requires judges to behave “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Earls later withdrew her lawsuit after the commission dropped its investigation into her comments.

Newby removes judges

Newby, who oversees the state courts system in his role as chief justice, has removed two judges from leadership positions this year without explanation.

In January, Newby stripped Judge Donna Stroud of her title as chief judge of the Court of Appeals. Stroud, who is also a Republican, had drawn ire from some members of her party for supporting a non-Republican to become clerk of the Court of Appeals, The N&O previously reported.

A photograph of Newby appeared in a campaign ad for Stroud’s Republican primary opponent in 2022.

In May, Newby replaced Mecklenburg County’s top district court judge, Elizabeth Trosch, without any explanation.

“There won’t be a comment on this from the Judicial Branch,” a spokesperson for the AOC told The Charlotte Observer in May.

Trosch, a Democrat, led the Mecklenburg district court through the pandemic and the rollout of eCourts. She was replaced by another Democrat.

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