Supreme Court Justice Samuel Alito has rejected calls for him to recuse from a pending case involving former President Donald Trump and others related to the Jan. 6 attack on the Capitol, rebuffing critics who said that two controversial flags flown at his homes violated judicial ethics.
In letters sent to lawmakers Wednesday, Alito said his wife was responsible for flying the American flag upside down for a time in 2021 at their Virginia home and for flying a Revolutionary War-era flag some associate with Christian Nationalism at their New Jersey shore home last year.
The so-called “Appeal to Heaven” flag and the inverted display of the American flag have both been associated with the movement among some Trump supporters to overthrow Joe Biden’s 2020 victory.
Neither episode warrants recusal from the case over Trump’s claim of presidential immunity, Alito said. The high court’s resolution of that case — expected by the end of June — could determine whether Trump will face charges for subverting the 2020 election.
Alito also said he will not recuse from a pending case about the scope of a criminal obstruction charge that has been lodged against many Jan. 6 defendants — including Trump.
Both flag displays were reported in recent days by the New York Times.
Alito explained that his wife flew the American flag upside-down due to “a very nasty neighborhood dispute” and he wasn’t involved in her decision to do so. “As soon as I saw it, I asked my wife to take it down, but for several days, she refused,” Alito wrote.
Alito said his wife, Martha-Ann Alito, is a flag aficionado and that accounts for the “Appeal to Heaven” flag that flew at their Jersey shore home.
“My wife is fond of flying flags. I am not,” the justice wrote. “I was not aware of any connection between this 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.”
Prominent Democrats, including Senate Judiciary Chair Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.) and a slew of House members, called on Alito to recuse from the Trump case over the incidents. Durbin and Whitehouse demanded last Friday a meeting with Chief Justice John Roberts over the flag displays at Alito properties — and called for him to ensure Alito’s recusal from all matters related to the Jan. 6 attack on the Capitol.
But the Illinois Democrat and committee chair has hereto resisted efforts from other Democrats to ramp up oversight, including calling for Alito or Roberts to appear before the committee to testify about the episode.
“I don't think that's going to achieve anything,” Durbin told POLITICO of calling for Alito to appear. He was similarly cool to the idea of asking for Roberts’ testimony: “I’m not going to do that,” he said pointedly.
The office of Sen. Lindsey Graham (R-S.C.), ranking member of the Judiciary Committee, was not immediately available for comment on the letter.
Biden’s White House has steered clear of the flag controversies, insisting it remains the role of Congress to conduct oversight of the court.
But Alito, who has chafed at other criticism from Congress, implicitly rebuked the lawmakers by saying that no reasonable person would deem his recusal merited over the episodes.
“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,” the justice wrote.
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