Alito Affirms Decision Not to Recuse from Supreme Court Cases Amid Flag Controversy

Supreme Court Justice Samuel Alito informed lawmakers in a letter that he will not step back from cases related to the 2020 presidential election or the January 6, 2021, US Capitol riot despite concerns about two flags on his properties.

In a letter released by the Supreme Court, Alito stated, “The two incidents mentioned do not warrant recusal. I want to clarify that I had no involvement in the display of that flag. I was not even aware of the upside-down flag until it was brought to my attention.”

The response to the letter is quite uncommon, showing how the flag controversy has been following Alito around. Justices on the Supreme Court usually don't engage in discussions with lawmakers, and many of them don't clarify why they choose to recuse themselves or not.

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See how GOP lawmakers reacted to Judge Alito's flag controversy

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The Supreme Court is currently considering important cases related to the 2020 election and the attack on the US Capitol. One case involves former President Donald Trump's argument for complete immunity from charges connected to election subversion by special counsel Jack Smith. Another case involves a January 6 rioter who is disputing an obstruction charge brought against him by prosecutors. He claims that the law was meant to apply to those destroying evidence, not to individuals storming a government building.

On September 23, 2020, a photo was taken of US Supreme Court Justice Samuel Alito and his wife Martha-Ann. They were standing during a private ceremony for Associate Justice Ruth Bader Ginsburg at the U.S. Supreme Court in Washington, DC.

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Alito repeated his claims about the upside-down US flag at his home in Alexandria, Virginia in early 2021. He mentioned that it was his wife who made the decision to place the flag. Alito attributed this decision to a "very nasty neighborhood dispute."

"My wife has the same First Amendment rights as any other American citizen," Alito stated in a letter to members of Congress. "She has the freedom to make her own choices, and I have always supported her in that."

"My wife enjoys displaying flags, but it's not something I personally do," Alito added.

A flag controversy arose at the Alitos' vacation home in New Jersey. The "Appeal to Heaven" flag, with roots dating back to the Revolutionary War, was flown there. This flag has also been associated with Trump supporters. Justice Alito mentioned on Wednesday that he was aware of the flag's presence, but he was unsure of how long it had been flown.

Alito said he was not familiar with the flag’s meaning and said his wife, Martha-Ann Alito, also hoisted that one.

This Google street view image from August 2023 shows "An Appeal to Heaven" flag flying at US Supreme Court Justice Samuel Alito's home in Long Beach Island.

From Google

Alito clarified that he had no part in the decision to display the flag. He explained that neither he nor his wife were aware of any connection between the historic flag and the 'Stop the Steal Movement'. His wife did not fly the flag to show support for any specific group, and using an old flag for a new cause doesn't erase its original significance.

He pointed out that according to the Supreme Court's recent adoption of a code of conduct following other scandals, the displaying of flags was not considered a reason for him to step down from his duties.

Members of the Supreme Court gathered for a new group photo after the addition of Associate Justice Ketanji Brown Jackson on October 7, 2022, in Washington. The bottom row includes Associate Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito, and Elena Kagan. On the top row are Associate Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. The main issue up for debate before the Supreme Court on April 25, 2024, is whether a former president can be prosecuted for actions taken while in office, and if so, to what extent can they be immune? (AP Photo/J. Scott Applewhite)

J. Scott Applewhite/AP

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Trump's favorite Supreme Court justice is unlikely to be one of the three he nominated. Alito stated that he felt obligated to decline requests from Congress members to recuse himself. Letters were sent to Illinois Sen. Dick Durbin and other House members who had requested Alito to recuse from cases related to the Capitol attack.

Alito stated that a fair individual, not influenced by political motives or a wish to influence court decisions, would see that this situation does not warrant recusal. He explained that he must decline the request for recusal as a result.

In response, Durbin mentioned that his committee has been looking into the recent news about Alito as part of their examination of possible ethical breaches by certain Supreme Court justices.

The Illinois Democrat expressed concern about the flying of the upside-down flag, seeing it as a symbol of defiance that raises questions about bias and fairness in Court cases.

Durbin believes that the Chief Justice has the power to restore America's confidence in the Court by implementing a credible code of conduct. He is committed to advocating for what the American people want: accountability, transparency, and a code of conduct that Supreme Court justices must follow.

Sen. Sheldon Whitehouse, who heads a Senate Judiciary subcommittee focused on court ethics, is using recent revelations to advocate for the passing of his Supreme Court Ethics, Recusal, and Transparency Act. He first introduced this act last year in response to reports about Justice Clarence Thomas failing to disclose financial information for several years.

Whitehouse emphasized the need for greater transparency within the Supreme Court. He highlighted that the Court lacks a mechanism to uncover the truth, unlike other branches of government. In a statement, the Rhode Island Democrat expressed that if the Court does not take action, his SCERT Act would provide the necessary framework for accountability and transparency.

Sen. Richard Blumenthal, a member of the Senate Judiciary committee, expressed his disbelief in Justice Alito's explanation during an interview with CNN's Kaitlan Collins on "The Source" last Wednesday. The Connecticut Democrat called on Chief Justice John Roberts to demonstrate courage and influence by not assigning opinions to Alito and Thomas.

Blumenthal emphasized that even small actions like these could have a significant impact and send a strong message.

Rep. Hank Johnson, a Democrat from Georgia who is a member of the House Judiciary Committee, believes that Justice Alito's response highlights the necessity for Congress to establish a clear and enforceable code of ethics for the Supreme Court.

Johnson expressed his view by stating that Justice Alito's explanation can be seen as a weak excuse, similar to saying "the dog ate my homework" or claiming ignorance of having any homework at all.

Trump commended Supreme Court Justice Samuel Alito for his decision not to recuse himself from cases related to January 6th, despite criticism from congressional Democrats. "Congratulations to United States Supreme Court Justice Samuel Alito for showing the intelligence, courage, and 'guts' to refuse stepping aside from making a decision on anything January 6th related," he wrote on Truth Social.

Spat with neighbors

The revelation of the flag came from a May 17 report from the New York Times. The outlet published a photo of the inverted American flag on January 17, 2021.

Alito stated that he had no part in flying the flag mentioned in the story. He explained that his wife briefly flew the flag in response to a neighbor's yard signs, one of which had a message against Trump.

Neighbors who were interviewed by CNN after the incident remembered seeing the flag inverted but were unsure of its meaning. There was no public reaction to the flag at that time.

The Times reported that in early 2021, a neighbor of Martha-Ann Alito contacted the police after having multiple interactions with the justice's wife. These encounters occurred after the neighbor had displayed yard signs that were critical of Republicans and Justice Alito.

During the exchanges, Justice Alito mentioned to Fox News that the neighbor had used the offensive term "c*nt" at one point.

The neighbor was seen in pictures holding signs with messages like "Alito was @ Jan6" and "Abort SCOTUS" after the 2022 ruling that overturned Roe v. Wade.

This story has been updated with more information.

CNN’s Piper Hudspeth Blackburn, Kate Sullivan, Jack Forrest, Morgan Rimmer, Tierney Sneed and Holmes Lybrand contributed to this report.

Editor's P/S:

The article highlights the controversy surrounding Supreme Court Justice Samuel Alito's refusal to recuse himself from cases related to the 2020 presidential election and the January 6th Capitol riot, despite concerns about two flags on his properties. Alito claims he was not involved in displaying the flags and is not aware of their significance, but his explanation has raised questions about his impartiality.

This incident has sparked debates about the need for a clear code of ethics for Supreme Court justices and greater transparency within the Court. Lawmakers and legal experts have expressed concerns about the potential bias and unfairness in Court cases when justices are involved in such controversies. The article also discusses how the revelation of the flags has become a political issue, with both Democrats and Republicans weighing in on Alito's decision.