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Alito rejects calls to recuse from Trump, Jan. 6 cases in light of flag controversies

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This article was updated on May 30 at 4:20 p.m. to include information on Chief Justice John Roberts’s statement.

Two weeks after the New York Times first reported that an upside-down American flag – popular among the “Stop the Steal” movement – flew outside the Virginia home of Justice Samuel Alito in the days following the Jan. 6, 2021, attacks on the U.S. Capitol, Alito rebuffed requests from Democratic lawmakers to recuse himself from cases involving immunity for former President Donald Trump for his role in the Jan. 6 attacks and the scope of a federal criminal law under which Trump and other Jan. 6 defendants have been charged. Telling the lawmakers that both the upside-down U.S. flag at his Virginia home and a flag, flown at his New Jersey beach home, associated with the “Stop the Steal” movement and Christian nationalism were flown by his wife, who refused to take the U.S. flag down even when he asked her to do so, Alito disclaimed any involvement with the decision to fly either flag.

Calling his wife an “independently minded private citizen” who “makes her own decisions,” Alito contended that a “reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude” that he was not required to recuse himself from the Trump immunity or Jan. 6 cases. Therefore, he continued, he was obligated under the Supreme Court’s code of conduct to reject the lawmakers’ request.

The flag controversy began on May 16, when Jodi Kantor of the New York Times reported that an upside-down flag had flown outside the Alitos’ home in Alexandria, Va., in mid-January 2021.

In a brief statement, Alito told Kantor that he “had no involvement whatsoever in the flying of the flag,” which was “placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Six days later, Kantor – along with Aric Toler and Julie Tate – broke the news that the “Appeal to Heaven” flag, which rioters carried at the U.S. Capitol during the Jan. 6 attacks, had flown on a flagpole at the Alitos’ vacation home on Long Beach Island in New Jersey during the summer of 2023. The flag, which is also known as the Pine Tree flag, was first used during the Revolutionary War but in the past decade has come to symbolize support for Christian nationalism and the false claim that the 2020 election was stolen.

Alito did not respond to the Times’ request for comment on the “Appeal to Heaven” flag at the time.

In two separate but near-identical letters to Democratic lawmakers who had written to Chief Justice John Roberts seeking Alito’s recusal, Alito declined to do so. He pointed to the justices’ code of conduct, which the justices adopted last November. That code establishes a presumption that the justices are “impartial” and have “an obligation” to participate in cases “unless disqualified.” A justice should disqualify himself, the code provides, “in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”

In the case of the upside-down flag at his Virginia home, Alito did not disavow any knowledge of the significance of flying the flag upside down. Instead, he explained, he simply was not involved in the decision to do so and was in fact “not even aware of the upside-down flag until it was called to my attention.” When he learned of the upside-down flag, he said, he asked his wife, Martha-Ann, “to take it down, but for several days, she refused.”

Alito added that he and his wife “own our Virginia home jointly,” so that she “has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly.”

Alito also noted that his wife “is a private citizen,” with the “same First Amendment rights as every other American.” Moreover, he continued, she “has made many sacrifices to accommodate my service on the Supreme Court, including the insult of having to endure numerous, loud, obscene, and personally insulting protests in front of our home that continue to this day and now threaten to escalate.”

Addressing the “Appeal to Heaven” flag, Alito reiterated that here too he “had no involvement in the decision to fly that flag.” Instead, he depicted the flag as one of many flown by Martha-Ann Alito at the couple’s homes over the years, ranging from “a favorite flag thanking veterans” to “college flags” and “seasonal flags.”

Alito disclaimed any knowledge of any symbolism behind the second flag, writing that he was “not familiar with the” flag “when my wife flew it.” Martha-Ann Alito “may have mentioned that it dates back to the American Revolution, and I assumed she was flying it to express a religious and patriotic message. I was not aware of any connection between this historic flag and the ‘Stop the Steal Movement,’ and neither was my wife. She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.”

Alito stressed that the New Jersey home is owned by Martha-Ann Alito alone, who purchased it “with money she inherited from her parents.” “It is a place, away from Washington, where she should be able to relax.”

Because a “reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude this event does not meet the applicable standard for recusal,” Alito concluded, he is “therefore duty-bound” to reject the request to recuse himself from the Trump immunity and Jan. 6 cases.

Decisions in those cases are expected sometime by late June or early July.

Chief Justice John Roberts issued his own letter on Thursday, declining to meet with Senators Richard Durbin and Sheldon Whitehouse regarding what the two Democratic lawmakers characterized as the “Supreme Court’s ethics crisis.”
Durbin and Whitehouse had written to Roberts last week in the wake of the reporting by the New York Times regarding the controversial flags flown at Alito’s homes in Virginia and New Jersey. The two senators had called for Alito’s recusal, reiterated their “call for the Supreme Court to adopt an enforceable code of conduct,” and asked for a meeting with the chief justice. 
In a brief letter, Roberts noted that Alito had responded directly to Durbin and Whitehouse on the recusal issue. 
With regard to the request for a meeting, Roberts emphasized that meetings between members of Congress and sitting chief justices have been “rare,” reasoning that “the importance of preserving judicial independence counsel against such appearances.” And for the chief justice to meet with members of “only one party who have expressed an interest in matters currently pending before the Court” would, Roberts wrote, be “inadvisable.”  

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Alito rejects calls to recuse from Trump, Jan. 6 cases in light of flag controversies, SCOTUSblog (May. 29, 2024, 4:42 PM),