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Critics Decry Justice Alito’s Refusal to Recuse on Key Court Cases

The calls for Alito’s recusal come amid reports of pro-Trump flags flying outside of the justice’s homes.

U.S. Supreme Court Associate Justice Samuel Alito testifies about the Court's budget during a hearing of the House Appropriations Committee's Financial Services and General Government Subcommittee March 7, 2019.

Supreme Court Justice Samuel Alito has responded to calls from Democratic lawmakers to recuse himself from key cases facing the Court, saying that he is refusing to step aside and defending the presence of flags in support of Donald Trump and the “Stop the Steal” movement outside his homes.

Earlier this month, it was reported that an upside-down U.S. flag flew outside Alito’s home in Virginia just weeks after the January 6, 2021, Capitol attack and days after Trump was impeached for his role in instigating the melee. Alito excused the flag’s presence, which at the time was being used by pro-Trump supporters, by claiming that his wife was in a dispute with neighbors over signage they had posted disparaging Trump.

Further reporting revealed that another far right emblem, the “Appeal to Heaven” flag — a symbol primarily used by Christian nationalists that was also prevalent at the Capitol attack — had flown at the Alito vacation home in New Jersey last summer. In Alito’s letter to Democratic Sens. Dick Durbin (Illinois) and Sheldon Whitehouse (Rhode Island), members of the Senate Judiciary Committee, he again claimed it was his wife who flew the flag.

Alito started his letter by sharing portions of the Code of Conduct for the Supreme Court, which states that justices should disqualify or recuse themselves if their “impartiality might reasonably be questioned” or if there was “doubt that the Justice could fairly discharge his or her duties.”

Alito then claimed that news about controversial flags outside his homes didn’t rise to that standard. He went on to write that “an unbiased and reasonable person” would come to the same conclusion he did, and blamed his wife for flying the emblems. Notably, Alito’s explanations are hearsay — he doesn’t offer any proof for his claims other than his own words.

“My wife is fond of flying flags. I am not,” Alito wrote. “My wife was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.”

Alito further claimed his wife wasn’t aware of the “Appeal to Heaven” flag being associated with the “Stop the Steal” movement. Prior to the last decade, the flag, which was used mostly during the Revolutionary War, wasn’t in mainstream use. From around 2013 onward, Christian nationalist and Christian dominionists have used it to signify their support of a theocratic government.

“The use of an old historic flag by a new group does not necessarily drain that flag of all other meanings,” Alito stated, failing to explain what meaning the flag actually did have for his wife.

The justice concluded his letter to Democrats by stating that he was “duty-bound” to be included in cases involving Donald Trump’s claims of presidential immunity, as well as January 6-related cases.

Durbin, who chairs the Judiciary Committee, responded to Alito’s letter by stating that it “clearly demonstrates why the Supreme Court needs an enforceable code of conduct.”

“Flying the American flag upside down at his home is a signal of defiance, which raises reasonable questions about bias and fairness in cases pending before the Court,” Durbin said, adding that Chief Justice John Roberts could “end this spiraling decline in America’s confidence in our highest Court by taking decisive action to establish a credible code of conduct.”

Alito’s excuses contradict comments he’s made on ethics standards in the past — during his 2006 confirmation hearings, Alito tried to sell himself to senators as going “beyond the letter of the ethics rules,” implying that he would “avoid any situation where there might be an ethical question raised.”

Others said that Alito’s excuses were unconvincing.

“It absolutely defies common sense and credibility,” Sen. Richard Blumenthal (D-Connecticut) said in response to Alito’s letter, describing his words as a “flimsy excuse.”

“This is not a persuasive voice of the ‘reasonable person.’ No justice should be the judge in his own recusal case,” Wendy Weiser, vice president for Democracy at the Brennan Center for Justice, said on social media.

Whitehouse, one of the senators to whom Alito’s letter was addressed, also responded to the missive from the justice, writing:

Justice Alito’s story conflicts with the accounts of other people involved, and the Supreme Court — uniquely in all of government — has no mechanism for getting to the truth. If the Court won’t create one, then we need to.

Many commentators noted that despite Alito’s defense of his wife’s right to free speech, he has repeatedly dismissed other rights as a jurist, including reproductive rights. Washington Post columnist Monica Hesse provided a humorous take on the letter, addressing Alito himself:

“I look forward to reading many more of your thoughts regarding women’s rights to obtain flags,” she wrote. “And by flags, I mean abortions.”

Chris Geidner, who manages Law Dork, a legal reporting and analysis publication, also blasted the justice’s explanation.

“Chief Justice John Roberts and the other justices should think very hard about their next steps,” Geidner opined, “because their colleague, Justice Sam Alito, has made it perfectly clear with this response that he thinks the ethics rules are a joke and that we are rubes for even thinking that he should be held to them.”

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