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SCOTUS Justice Samuel Alito Caught Up in Second Flag Controversy

Several critics say the partisan flags in front of Alito’s home should result in his recusal from key cases.

Supreme Court Justice Samuel Alito speaks during the Georgetown University Law Center's third annual Dean's Lecture on February 23, 2016 in Washington, D.C.

Supreme Court Justice Samuel Alito, a conservative bloc member of the High Court, flew a second controversial flag that seems to suggest he has bias that could influence his opinion in cases relating to the January 6, 2021, attack on the U.S. Capitol, as well as a case involving former President Donald Trump’s attempt to overturn the 2020 election.

Last week, The New York Times reported that an upside-down U.S. flag — a recognized symbol of support for Trump in the days after the Capitol attack — flew outside Alito’s home just shortly after that event, and days after Trump was impeached in early 2021 for his role in instigating it. Alito blamed his wife for flying the flag, claiming that she had done so to demonstrate anger toward a neighbor over anti-Trump signage.

Reporting on Wednesday by The Times indicates that a second controversial flag flew over another property the Alito family owns, more than two years after the upside-down flag had been raised outside of his main residence.

In Long Beach Island, New Jersey, last summer, an “Appeal to Heaven” flag flew over the vacation home of the associate justice. The flag was up for an undetermined amount of time — according to sources speaking to The Times, it was up at several points between July and September 2023, though the publication was unable to discern whether it was up that entire time. Still, residents who were nearby the house when it flew recounted “seeing the justice [at the property] last summer,” likely being there when the flag was up.

The Appeal to Heaven flag was originally prominent during the Revolutionary War and shortly afterward, and contains those words on it, a reference to philosopher John Locke’s antipathy toward a divine right of kings and his idea that violence is sometimes justified to achieve necessary political ends. The flag also features a distinctive pine tree below those words, and was seen among a slew of other flags during the January 6 attack.

Up until a decade ago, the flag was largely out of use, but around 2013 Christian nationalists and Christian dominionists started using the flag (and its religious wording) to symbolize their movement. Its inclusion at the Capitol attack by pro-Trump rioters signals, in part, how members of those movements were a large part of the effort to block Congress from certifying Trump’s loss to President Joe Biden.

The use of these two symbols in front of a sitting Supreme Court justice’s home raises deep ethical concerns. Justices of the Court are not supposed to engage in any action that could reasonably cause people to question their rulings.

Alito has not yet commented on the reporting of the second controversial flag. Given the time that the second flag flew, its far right symbolism, and the distance away from his main lodgings that it was, it’s unlikely that he can use the same excuse that he did for the upside-down flag, that it was flown over a neighborly dispute.

The Court, including Alito, is set to rule on an important case relating to January 6 attackers’ claims that they shouldn’t have received obstruction charges. The ruling in that case could have huge implications for the charges against Trump relating to his attempts to overturn the 2020 election. The justices are also set to weigh in on Trump’s extensive claims of presidential immunity in a separate case.

The two flags, symbols used by pro-Trump demonstrators for the past few years, being flown in front of Alito’s properties is indeed troubling to many observers.

“At this point it is difficult to make any reasonable case for Alito’s impartiality; it can and must be questioned,” read a post on X from the nonprofit government watchdog organization Citizens for Responsibility and Ethics in Washington.

“The alito flag story does not teach me anything new about his politics but it does reveal how confident he is that nobody can do anything about him,” opined Laura Bassett, columnist for The Cut.

Democratic congressional lawmakers also weighed in on the matter.

“This incident is yet another example of apparent ethical misconduct by a sitting justice, and it adds to the Court’s ongoing ethical crisis,” said Sen. Dick Durbin (D-Illinois), chair of the Senate Judiciary Committee. “For the good of our country and the Court, Justice Alito must recuse himself immediately from cases related to the 2020 election and the January 6th insurrection.”

“If Justice Alito does not recuse himself from the Trump immunity case and the Fischer January 6 case, he will do irreparable damage to the Supreme Court. And Chief Justice Roberts must step in,” said Rep. Dan Goldman (D-New York).

Prior to the report of the Appeal to Heaven flag, Rep. Steve Cohen (D-Tennessee) put forward a censure resolution against Alito. The measure is unlikely to move forward in the GOP-run House of Representatives, though it is not impossible for it to do so, particularly since the chamber is so narrowly divided and a few moderate Republicans, joining with all Democrats, could force the motion forward.

The measure reprimands Alito for “knowingly violating the federal recusal statute and binding ethics standards and calling the impartiality of the Supreme Court of the United States into question by continuing to participate in cases in which his prior public conduct could be reasonably interpreted to demonstrate bias.”

Like his other Democratic colleagues, Cohen is also calling for Alito to step away from cases where his bias might be called into question.

“There must be accountability to protect the integrity and impartiality of the High Court,” Cohen said in a statement. “We must protect the Constitutional rights to fair and impartial proceedings. Justice Alito should be censured for flagrant breaches of the law and court rules, and he must recuse himself from all other 2020 election and January 6th related litigation.”

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