Justice Samuel Alito will not recuse himself from Supreme Court cases involving former President Donald Trump and Jan. 6, 2021, defendants despite calls from Senate Democrats to step aside over flags flying outside his home.
In a letter to Senate Judiciary Committee Chairman Dick Durbin (D-IL) and Sen. Sheldon Whitehouse (D-RI), Alito wrote that he had “nothing whatsoever to do” with an upside-down flag over his house in 2021 and an “Appeal to Heaven” flag at his New Jersey beach house last year.
Alito wrote that neither incident merits his recusal, and that he was unaware of the upside-down flag until it was brought to his attention.
“I was not even aware of the upside-down flag until it was called to my attention,” Alito wrote. “As soon as I saw it, I asked my wife to take it down, but for several days, she refused. My wife and I own our Virginia home jointly. She therefore has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly.”
The justice added that he is “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 recounted above do not meet the applicable standard for recusal,” citing the standards in the Supreme Court’s code of conduct that was adopted recently in response to other alleged scandals.
“I am therefore required to reject your request,” Alito said, adding he has an “obligation” to do so based on the court’s code of ethics. The code of conduct is not binding the justices, meaning there is not a clear enforcement mechanism that has prompted some scrutiny from Democrats like Durbin and Whitehouse.
The letter from Alito comes in response to Durbin and Whitehouse’s request to meet with Chief Justice John Roberts over their concerns surrounding the two separate flag incidents.
The decision to recuse is left up to specific justices and is not reviewable by other colleagues. The law requires recusal if a family member is involved in a case as a litigant, witness, or lawyer or has an interest that will greatly affect the decision.
“The upside-down flag does not require Alito to recuse from every 2020 election case or future election case or whatever else,” Jonathan Adler, a professor at Case Western Reserve University who specializes in environmental, administrative, and constitutional law, told the Washington Examiner last week.
Alito’s letter marks an unusual response to ongoing reports by the New York Times over the flag incidents. Last year, Justice Clarence Thomas also offered a rare response in August acknowledging he had taken three trips in 2022 aboard a private plane owned by Republican megadonor Harlan Crow, while rejecting criticism over his failure to report similar trips with Crow in previous years.
According to the New York Times, a neighbor of Martha-Ann Alito called the police after several encounters with the justice’s wife in early 2021, after the neighbor had placed yard signs which included derogatory language about Trump. Pictures obtained by the outlet show the neighbor holding signs that say “Alito was @ Jan6” in addition to signs that said “Abort SCOTUS” after the 2022 ruling that overturned Roe v. Wade.
Alito told Fox News that the neighbor used the term “c*nt” at one point when speaking to his wife.
Cases that Democrats such as Durbin and Whitehouse think Alito should recuse from are pivotal in the high court’s current term, and the justices have not yet handed down their decisions in them. One of the cases is Trump v. United States, which asks the justices whether Trump has any immunity from prosecution in the context of the 2020 election subversion case brought by special counsel Jack Smith. The other case involves a question of whether hundreds of Jan. 6 riot defendants were wrongfully charged under a long-standing obstruction statute when the certification of President Joe Biden’s electoral victory was briefly interrupted due to the riot.
Former President Donald Trump, who is currently awaiting a jury decision in his 34-count New York hush money trial, responded to Alito’s letter in a Truth Social post by commending the George W. Bush-appointed justice for having the “COURAGE” and “GUTS” to stand up to recent recusal calls.
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“Congratulations to United States Supreme Court Justice Samuel Alito for showing the INTELLIGENCE, COURAGE, and “GUTS” to refuse stepping aside from making a decision on anything January 6th related,” Trump wrote. “All U.S. Judges, Justices, and Leaders should have such GRIT – Our Country would be far more advanced than its current status as A BADLY FAILING NATION, headed by the Worst President in American History, Crooked Joe Biden!”
Read Alito’s full letter below:
