Alito rejects calls to recuse himself from Jan. 6 cases over flags controversy

Justice Samuel Alito told lawmakers on Wednesday that he will not recuse himself from upcoming cases related to the 2020 election and the Jan. 6, 2021, Capitol riot after it was reported that flags connected to the “Stop the Steal” effort were flown outside his homes. 

Alito wrote in a pair of letters to members of Congress that he had nothing to do with flags that were flown over his homes, including an upside-down American flag he said his wife, Martha-Ann, flew as part of a dispute with neighbors in Alexandria, Va.

“The two incidents you cite do not meet the conditions for recusal … and I therefore have an obligation to sit [for the cases],” Alito wrote to Senate Judiciary Committee Chair Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.), both of whom have called for his recusal from the pending cases. 

“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. As soon as I saw it, I asked my wife to take it down, but for several days, she refused,” Alito wrote, noting that they own their home “jointly” and that she has a “legal right to use the property as she sees fit.” 

The upside-down flag has long been known as a signal to indicate distress, but it has been used by those protesting former President Trump’s loss in 2020 and became associated with the “Stop the Steal” movement, which tried to prevent the transfer of presidential power based on false claims of election fraud.

The Supreme Court’s ethics code says justices should not make political statements, in order to preserve their impartiality on matters that arrive before the court.

The Supreme Court is set to rule on a pair of key cases in the coming weeks related to the Jan. 6 attack, including whether Trump has immunity from prosecution. 

Alito also addressed an “Appeal to Heaven” flag that The New York Times reported flew over their beach home in Long Beach Island, N.J., saying that he was largely unfamiliar with the flag’s message while it flew over the property. The flag, which dates to the Revolutionary War, has more recently served as a call for a conservative, Biblical-centered government and was spotted in the mob that stormed the Capitol on Jan. 6.

“My wife is fond of flying flags. I am not. My wife was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years,” Alito wrote.

The justice directed a second letter to House Democrats who were also calling for his recusal.

“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. I am therefore duty-bound to reject your recusal request,” he wrote in both letters.

Alito’s official response to Congress comes nearly two weeks after the initial report about the flags emerged, with Durbin’s push for recusal coming shortly afterward. The Illinois Democrat has acknowledged, however, that there is little lawmakers can do to punish Alito short of impeachment.

“And we’re not at that point at all,” Durbin said last week. 

Justice Clarence Thomas also faced calls for his recusal over the involvement of his wife, Virginia, in the push to overturn the 2020 election results. Like Alito, Thomas has also declined to step aside. 

Alito and Durbin have found themselves in a public war of words over the past year, with the Judiciary Committee chair leading the charge on Capitol Hill to institute a new ethics code for justices in the wake of numerous reports that some, including Thomas and Alito, have received lavish gifts and vacations from wealthy donors and benefactors. 

Justices have pushed back heavily on this possibility, saying Congress has no standing to implement rules on the court.

Updated at 2:17 p.m.