Alito rejects calls to quit Supreme Court cases on Trump and Jan. 6 because of flag controversies

May 29, 2024, 7:15 PM


Samuel Alito sits during a group photo at the Supreme Court in Washington. (Erin Schaff/The New York Times via AP, Pool, File)

(Erin Schaff/The New York Times via AP, Pool, File)

Justice Samuel Alito is rejecting calls to step aside from Supreme Court cases involving former President Donald Trump and Jan. 6 defendants, saying his wife hoisted the two controversial flags that flew above their homes.

“My wife is fond of flying flags. I am not,” Alito wrote Wednesday.

In letters to members of Congress, Alito said his wife, Martha-Ann, was responsible for flying both an upside-down flag over their home in 2021 and an “Appeal to Heaven” flag at their New Jersey beach house last year. Both flags were like those carried by rioters who violently stormed the Capitol in January 2021 while echoing Trump’s false claims of election fraud.

Neither incident at Alito’s homes merited his recusal, wrote the justice, who has rejected calls from Democrats in the past to recuse on other issues.

“I am confident 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 conclude that the events … do not meet the applicable standard for recusal,” he wrote. “I am therefore required to reject your request.”

Supreme Court justices decide for themselves whether to sit out a case and the only potential consequence for refusing to step aside is impeachment by the House of Representatives and removal from office by the Senate. That has never happened in American history.

Trump, who was in New York while jurors deliberated in his hush money criminal trial, congratulated Alito for “showing the INTELLIGENCE, COURAGE, and ‘GUTS’” in refusing to step aside. “All U.S. Judges, Justices, and Leaders should have such GRIT,” Trump posted on his Truth Social platform.

Some Senate Republicans also quickly took to social media Wednesday to praise Alito for staying involved in the cases.

The court is considering two major cases related to the Jan. 6, 2021, attack by a mob of Trump supporters on the Capitol, including charges faced by the rioters and whether Trump has immunity from prosecution on election interference charges.

The New York Times reported that an inverted American flag was seen at Alito’s home in Alexandria, Virginia, less than two weeks after the attack on the Capitol. The paper also reported that an “Appeal to Heaven” flag was flown outside the justice’s beach home in New Jersey last summer.

The “Appeal to Heaven” flag has in recent years come to symbolize sympathies with the Christian nationalist movement and the false claim that the 2020 presidential election was stolen from Trump. According to Americanflags.com, the pine tree on the flag symbolized strength and resilience in the New England colonies while the words “Appeal to Heaven” stemmed from the belief that God would deliver the colonists from tyranny.

An upside-down American flag has come to be a symbol associated with Trump’s bogus fraud claims. Dozens of the pro-Trump rioters were carrying similarly inverted flags and chanting slogans like “Stop the Steal” on Jan. 6, 2021. The U.S. Flag Code states that the American flag is not to be flown upside down “except as a signal of dire distress in instance of extreme danger to life or property.” The inverted flag has been used as a protest symbol on both the left and the right on a range of issues over the decades.

Alito said he was unaware that the upside-down flag was flying above his house until it was called to his attention. “As soon as I saw it, I asked my wife to take it down, but for several days, she refused,” he wrote in nearly identical letters to Democrats in the House and the Senate.

He had previously explained to the newspaper that his wife put up the flag as part of a nasty neighborhood dispute.

The flag at his beach house was also hoisted by his wife, Alito wrote, noting that the house is in her name and was bought with money she inherited from her parents.

Alito said he was unfamiliar with the “Appeal to Heaven” flag when it was flown, but he noted it dates back to the American Revolution. “I was not aware of any connection between this historic flag and the ‘Stop the Steal Movement’ and neither was my wife,” Alito wrote.

He said Martha-Ann Alito did not fly that flag to associate herself with the rioters or the effort to overturn the results of the 2020 election, which Trump, a Republican, lost to Joe Biden, a Democrat.

Calling her an independently-minded private citizen, Alito wrote, “She makes her own decisions and I honor her right to do so.”

Alito also described the sacrifices his wife has made because of her husband’s service on the Supreme Court, including “the insult of having to endure numerous, loud, obscene and personally insulting protests in front of our home that continue to this day and now threaten to escalate.”

Protests began in 2022 after a draft of Alito’s majority opinion overturning Roe v. Wade and allowing states to ban abortions was leaked in early May. The court formally issued the decision in late June.

Democrats in the House and the Senate sent a total of three letters last week to Alito and Chief Justice John Roberts seeking Alito’s disqualification from the cases. Senators asked for a meeting with Roberts.

Alito said it was better that he respond directly.

Judicial ethics codes focus on the need for judges to be independent, avoiding political statements or opinions on matters they could be called on to decide. The Supreme Court had long gone without its own code of ethics, but it adopted one in November 2023 in the face of sustained criticism over undisclosed trips and gifts from wealthy benefactors to some justices.

The code lacks a means of enforcement, though, and the Senate Judiciary Committee approved legislation last year that would set stricter standards. But Republicans have been staunchly opposed to any efforts to tell the court what to do.

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Alito rejects calls to quit Supreme Court cases on Trump and Jan. 6 because of flag controversies