Supreme Court Justice Samuel Alito told lawmakers in a letter Wednesday that he will not recuse from cases involving the 2020 presidential election or the January 6, 2021, US Capitol riot despite concerns about two controversial flags that have flown on his properties.
“The two incidents you cite do not meet the conditions for recusal,” Alito wrote in a letter distributed by the Supreme Court. “As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside-down flag until it was called to my attention.”
The letter is a highly unusual response, underscoring how the revelations about the flags have dogged Alito for days. Supreme Court justices rarely get into a back-and-forth with lawmakers and many members of the court do not explain their reasons for recusing – or not.
The Supreme Court is weighing major cases tied to the 2020 election and the attack on the US Capitol. In one, the justices are weighing former President Donald Trump’s claim of absolute immunity from special counsel Jack Smith’s election subversion charges. In another, a January 6 rioter is challenging an obstruction charge filed against him by prosecutors, arguing that Congress intended that law to apply to people destroying evidence, not storming a government building.
Repeating claims he made previously about an upside-down US flag that flew at his Alexandria, Virginia, home in early 2021, Alito said the decision to place the flag was his wife’s. And he blamed that decision on a “very nasty neighborhood dispute.”
“My wife is a private citizen, and she possesses the same First Amendment rights as every other American,” Alito wrote in one of two letters sent to members of Congress. “She makes her own decisions, and I have always respected her right to do so.”
“My wife is fond of flying flags,” Alito wrote. “I am not.”
Appeal to Heaven flag controversy
A second controversial flag – the “Appeal to Heaven” flag which has a history dating to the Revolutionary War, but also has become a symbol for Trump supporters – flew at the Alitos’ vacation home in New Jersey. The justice on Wednesday said he was aware of the flag but didn’t know how long it was flown.
Alito said he was not familiar with the flag’s meaning and said his wife, Martha-Ann Alito, also hoisted that one.
“I had no involvement in the decision to fly that flag,” Alito wrote. “I was not aware of any connection between that historic 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, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.”
Citing the code of conduct the Supreme Court adopted recently in response to another series of scandals, Alito said the flags did not constitute grounds for recusal.
Alito said he was “duty bound” to reject requests from members of Congress to recuse. One of the letters was addressed to Illinois Sen. Dick Durbin, the Democratic chairman of the Senate Judiciary Committee, who had requested that Alito recuse from cases involving the attack on the Capitol. Another was addressed to members of the House who had made similar demands.
“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. “I am therefore duty-bound to reject your recusal request.”
Durbin in a statement said his committee has been reviewing the recent reporting on Alito as part of their investigation of “ethical lapses by some justices on the Supreme Court.”
The Illinois Democrat called the flying of the upside-down flag “a signal of defiance, which raises reasonable questions about bias and fairness in cases pending before the Court.”
“At the end of the day, the Chief Justice can end this spiraling decline in America’s confidence in our highest Court by taking decisive action to establish a credible code of conduct,” Durbin said. “I will continue to pursue what the American people are demanding: accountability, transparency, and an enforceable code of conduct for Supreme Court justices.”
Sen. Sheldon Whitehouse, who chairs a Senate Judiciary subcommittee looking into court ethics, used the recent revelations to push for passage of his Supreme Court Ethics, Recusal, and Transparency Act, which he introduced last year following media reports about Justice Clarence Thomas’ pattern of nondisclosure on his financial reports for years.
“Justice Alito’s story conflicts with the accounts of other people involved, and the Supreme Court — uniquely in all of government — has no mechanism for getting to the truth. If the Court won’t create one, then we need to, and my SCERT Act would do that,” the Rhode Island Democrat said in a statement.
Sen. Richard Blumenthal, who also sits on the Senate Judiciary committee, told CNN’s Kaitlan Collins on “The Source” late Wednesday that Alito’s explanation “defies common sense.” The Connecticut Democrat also urged Chief Justice John Roberts to “show some spine” and “use his moral and political force on the court and take actions” like refusing to assign opinions to Alito and Thomas.
“Those kinds of steps may seem small, but they would send a very powerful message,” he added.
Rep. Hank Johnson, a Georgia Democrat who serves on the House Judiciary Committee, said Alito’s response demonstrated a need for Congress to step in to approve an enforceable code of ethics on the high court.
“Any unbiased and reasonable person would find laughable Justice Alito’s ‘the dog ate my homework, and I didn’t even know I had homework’ defense,” Johnson said.
While congressional Democrats slammed Alito’s refusal to recuse himself, Trump praised the conservative justice’s move.
“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,” he wrote on Truth Social.
Spat with neighbors
The revelation of the flag came from a May 17 report from the New York Times. The outlet published a photo of the inverted American flag on January 17, 2021.
Following the story, Alito said in a statement he had “no involvement whatsoever in the flying of the flag” and that it was “briefly” flown by his wife in response to a neighbor’s yard signs, one of which, the justice told Fox News, read “F**k Trump.”
Neighbors with whom CNN spoke following reports of the flag said they recalled the flag being inverted but said they didn’t know what it meant and there was no public reaction at the time.
According to the Times, a neighbor involved in the exchange with Martha-Ann Alito called police after several encounters with the justice’s wife in early 2021, after the neighbor had placed yard signs which were critical of Republicans and the justice.
Justice Alito also told Fox News the neighbor used the term “c*nt” at one point during the exchanges.
Pictures obtained by the Times show the neighbor holding signs that include “Alito was @ Jan6” along with “Abort SCOTUS” following the ruling 2022 overturning Roe v. Wade.
This story has been updated with additional details.
CNN’s Piper Hudspeth Blackburn, Kate Sullivan, Jack Forrest, Morgan Rimmer, Tierney Sneed and Holmes Lybrand contributed to this report.
