Justice Alito rejects demands that he step aside from Jan. 6 cases because of flags

WASHINGTON − Supreme Court Justice Samuel Alito rejected calls to recuse himself from cases involving the Jan. 6, 2021, attack on the Capitol, telling members of Congress Wednesday that such calls are politically motivated.

Alito said the flags flown over his homes, which experts say are connected with false claims that the 2020 election was stolen, were raised by his wife and were not in support of the "Stop the Steal" movement.

"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 this event does not meet the applicable standard for recusal," Alito wrote in a letter to lawmakers. "I am therefore duty-bound to reject your recusal request."

The high court is deciding two cases related to the attempts by former President Donald Trump and his supporters to overturn the results of the election, decisions that will affect the criminal election interference charges pending against Trump.

Democratic members of Congress and some ethics experts have said Alito should not participate in those decisions because an inverted American flag flown at his Virginia home in January 2021 and an “Appeal to Heaven” flag flown at his New Jersey beach house were carried by some of the people who attacked the Capitol on Jan. 6, 2021.

“By displaying the upside-down and ‘Appeal to Heaven’ flags outside his homes, Justice Alito actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promotes public confidence in the impartiality of the judiciary,” Senate Majority Whip Dick Durbin of Illinois and Sen. Sheldon Whitehouse of Rhode Island wrote in a letter Friday to Chief Justice John Roberts.

The senators, top members of the Senate Judiciary Committee, said Alito’s recusal from cases related to the 2020 presidential election and the Jan. 6 attack on the Capitol is “both necessary and required.”

They asked for a meeting with Roberts to discuss to “the Supreme Court’s worsening ethics crisis.”

Alito said the decision to recuse is his to make, not the chief justice’s.

And he said the decisions to fly the flags were made by his wife, Martha-Ann Alito, an “independently minded private person” who is "fond of flying flags."

“She makes her own decisions and I honor her right to do so,” Alito wrote.

In fact, Alito said, he asked his wife to take down the inverted American flag but she refused to for several days.

An attorney who knows the Alitos said it’s not the justice’s style to exhibit the kind of behavior Alito attributed to his wife in response to a spat with a neighbor.

While Alito is reserved and taciturn, his wife is “a pistol, a big personality,” said the attorney, who spoke on the condition of anonymity.

More: Samuel Alito flew an 'Appeal to Heaven' flag outside his Long Beach vacation home: report

Of the flag that flew over their vacation home, Alito said neither he nor his wife were aware of the connection of the “Appeal to Heaven” flag with the 2020 election deniers.

“She did not fly it to associate herself with that or any other group,” he wrote, “and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.”

The "Appeal to Heaven" flag − a white flag with a green pine tree in the center − was used during the American Revolution. It has become a symbol for Christian nationalists.

Alito said he assumed his wife was expressing “a religious and patriotic message.”

Supreme Court Justices are supposed to avoid politics.

But the standard for what constitutes a conflict of interest has gone up, said Sam Erman, who teaches law at the University of Michigan and once clerked for former Justice Anthony Kennedy.

Recusal has more commonly been connected with a financial interest or a personal relationship with one of the litigants, he said, rather than having the political views expressed by a flag on your property.

“It seems a bit odd to say, ‘I want you to recuse because you hold these views,’” Erman said.

But Sen. Richard Blumenthal, D-Ct., said Alito’s refusal to recuse “continues to defy & defile norms of decency & ethics.”

“Time for Roberts to show some spine,” Blumenthal said on X, “ & step into the breach.”

This article originally appeared on USA TODAY: Justice Alito rejects demands the he recuse himself from Jan. 6 cases