U.S. Supreme Court Justice Samuel Alito has rejected calls to step aside from cases involving former president Donald Trump and Jan. 6 defendants, saying his wife hoisted controversial flags that flew above two homes.
“My wife is fond of flying flags. I am not,” Alito wrote Wednesday.
In letters to Congress, Alito said his wife, Martha-Ann, was responsible for flying both an upside-down flag over their home in 2021 as well as an “Appeal to Heaven” flag at their New Jersey beach house last year. Both flags were prominent at the Jan. 6, 2021, riot at the U.S. Capitol.
“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.”
The court has recently heard arguments in questions involving the immunity of presidents who’ve left office, as well as obstruction of a federal proceeding. The impending rulings could have consequences for existing federal charges Trump faces with respect to his efforts to prevent Joe Biden from taking office after the 2020 election.
Trump on his Truth Social platform praised Alito, who was nominated in 2005 by then-president George W. Bush.
Alito explained to the New York Times, which first broke the story about the upside-down flag, that his wife put it up after a heated dispute with anti-Trump neighbours.
“As soon as I saw it, I asked my wife to take it down, but for several days, she refused,” said the 74-year-old justice who wrote the 2022 opinion that has upended access to abortion for women nationwide.
Alito also noted that the beach property is in his wife’s name.
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What about these flags?
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 “Appeal to Heaven” banner dates to the Revolutionary War. Six schooners outfitted by George Washington to intercept British vessels at sea flew the flag in 1775 as they sailed under his command. It became the maritime flag of Massachusetts in 1776 and remained so until 1971, Ted Kaye, secretary for the North American Vexillological Association, which studies flags and their meaning, told The Associated Press last week.
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.
Alito noted the American Revolution history.
“I was not aware of any connection between this historic flag and the ‘Stop the Steal Movement’ and neither was my wife,” Alito wrote.
The flag was little seen in modern times until recent years. Jared Holt, a senior analyst at the Institute for Strategic Dialogue, a London-based think-tank that tracks online hate, disinformation and extremism, said some adherents today fly it to identify with a “patriot” movement that obsesses over the Founding Fathers and the American Revolution. Others adhere to a Christian nationalist worldview that seeks to elevate Christianity in public life and government.
Holt called the display outside Alito’s home “alarming,” as those who fly the flag are often advocating for “more intolerant and restrictive forms of government aligned with a specific religious philosophy.”
Martha-Ann Alito did not fly it to associate herself with the rioters or the effort to overturn the 2020 results, her husband asserted. Alito wrote: “She makes her own decisions and I honour her right to do so.”
Republican House Speaker Mike Johnson displays the Appeal to Heaven flag in the hallway outside his office next to the flag of his home state, Louisiana.
Johnson told The Associated Press earlier this month he did not know the flag had come to represent the “Stop the Steal” movement.
“Never heard that before,” he said.
What are the ethics?
Alito’s explanation is unlikely to satisfy Democratic critics, but they have little recourse, though those in the Senate have asked for a meeting with Chief Justice John Roberts.
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 U.S. 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 after stories surfaced around justices Clarence Thomas and Sonya Sotomayor.
The Senate’s 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.
A law that applies to Supreme Court justices and all other federal judges lays out several criteria that require recusal. The language that appears most relevant in Alito’s case reads: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
The only potential consequence for refusing to step aside is impeachment by the House of Representatives and removal from office by the Senate, which has never happened in American history.
Last year, Alito didn’t take part in an appeal involving Phillips 66. He didn’t explain his decision, but his financial disclosure showed he owns between $15,000 and $50,000 in the company’s stock.
Thomas also heard the Supreme Court cases involving immunity and obstruction. His wife, conservative activist Ginni Thomas, has faced criticism for using her Facebook page to amplify unsubstantiated claims of corruption by Biden, and she was known to have been in close contact with White House chief of staff Mark Meadows on Jan. 6, 2021, urging him in text messages to stand firm in efforts to prevent the certification of Biden’s win.
“You know, it was an emotional time. I’m sorry these texts exist,” Ginni Thomas told a congressional committee over a year later, though she still admitted she had “concerns” about the 2020 election.
“It’s laughable for anyone who knows my husband to think I could influence his jurisprudence,” she told the committee. “The man is independent and stubborn.”