No one expected Justice Samuel Alito to recuse himself from Jan. 6-related cases, despite the appearance of impropriety from flags flying at his homes that Jan. 6 rioters also carried. But his explanation Wednesday for refusing to step aside further exposes his inability or unwillingness to understand the problem with him sitting on these cases, leaving important questions unanswered.
To recap how we got here, The New York Times reported May 16 that an upside-down American flag was flying outside Alito’s Virginia home in January 2021 in the wake of the Jan. 6 insurrection. In a statement to the Times, Alito said that he wasn’t involved in flying the flag at his house and that it was the doing of his wife, Martha-Ann, in response to a neighborhood dispute. He didn’t explain what (according to him) his wife sought to convey by flying the flag in that way at that time or what he thought about it then or now.
Another story from the Times, published Tuesday, called Alito’s account into question by noting, among other things, that his claimed impetus for the flag being hoisted took place in February 2021, after the flag was taken down.
The Times also reported May 22, in a story for which Alito didn’t provide comment, that his New Jersey beach house last summer flew an “Appeal to Heaven” flag, which dates back to the Revolutionary War and has recently been embraced by Christian nationalists.
A lot is going on there. But before turning to Alito’s strained explanation for refusing to recuse himself, I’d like to highlight a part of the first Times story, which reported that “neighbors interpreted the inverted flag as a political statement by the couple.” Keep that in mind when considering the letters the justice sent Wednesday to Senate and House Democrats who called for his recusal.
In them, he cited the Supreme Court’s new, unenforceable code of conduct. It says that justices are presumed impartial and have an obligation to sit on cases but that justices should disqualify themselves when their “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.”
Of the upside-down flag that flew outside his house post-Jan. 6, Alito wrote that
an unbiased and reasonable person would take into account the following facts. As I have stated publicly, I had nothing whatsoever to do with the flying of the flag. I was not even aware of the upside-down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused. My wife and I own our Virginia home jointly. She therefore 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.
OK, so he’s leaning into the my-wife-did-it thing. But even if one accepts his narrative on its own terms, it still raises more questions than it answers, such as: Why did he ask his wife to take it down? Is it because he understood the political message (as his neighbors apparently did) that an impartial justice has no business being associated with?
Again, even assuming (naively) that the message was his wife’s alone, what was her message — and again, what did he think about it, then or now? Alito doesn’t say. In fact, he writes in his letters that her reasons for flying the flag “are not relevant for present purposes.” But they are. Alito himself notes that, in deciding recusal, we need to look at “all relevant circumstances.” Yet, he cites the claimed subjective motivations of his household that he sees as favorable to his position — like his wife’s “distress” at the time due to her neighborhood feud — while ignoring one of the most important circumstances. At any rate, there isn’t a my-wife-was-upset-with-neighbors exception to a judge’s home displaying overt political messages. So, it’s more than fair for a reasonable observer to infer, as his neighbors apparently did, the inverted flag’s association with the “Stop the Steal” movement in the 2020 presidential election that’s implicated in two key pending Supreme Court decisions on Donald Trump’s criminal immunity in his Jan. 6-related prosecution and on charges for Jan. 6 defendants more broadly. Indeed, Alito writes in his letters that neither he nor his wife were aware of the “Appeal to Heaven” flag’s association with “Stop the Steal,” further implicitly conceding their awareness of the inverted flag’s connection to that political movement. Somehow, Alito concludes 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 think he doesn’t have to recuse. But his analysis — which refuses to acknowledge, much less grapple with, unfavorable facts — shows that his judgment is tainted. As a result, so is a court that operates this way. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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