Justice Alito can blame Mrs. Alito, but he still needs to recuse

Recent reporting that Justice Samuel Alito flew two flags associated with the Jan. 6 attack on the Capitol outside his homes on two occasions abruptly reminds us that the Supreme Court is embroiled in an ethical crisis of its own making.

As lawyers, we are deeply troubled by Alito’s repeated ethical misconduct. As women, we are dismayed that his response thus far has been to blame his wife for his ethical mishaps rather than taking responsibility for his own misdeeds as required by the ethics rules that he — not his wife — swore to uphold.

When Supreme Court justices assume their roles, they swear to “faithfully and impartially discharge and perform all the duties incumbent upon me as a justice of the Supreme Court under the Constitution and laws of the United States.” This oath — which is taken by the justice and the justice alone — places upon them the highest ethical responsibilities to help maintain public confidence in the impartiality of the judiciary.

One of these responsibilities, which is borne by all federal judges including Supreme Court justices, is a requirement to recuse themselves from “any proceeding in which [their] impartiality might reasonably be questioned.” If a justice fails to recuse in a case pertaining to their spouse’s political or financial interests, the public can reasonably assume that a justice might make decisions that would benefit or protect not just themselves, but also their spouse. It is the justice’s responsibility to acknowledge this reality and recuse themselves to avoid even the appearance of undue bias or a conflict of interest.

Unfortunately, it appears that Alito has repeatedly violated this rule. According to the New York Times, an upside-down American flag was flown outside of Alito’s house apparently for several days after the Jan. 6 insurrection. The upside-down flag, traditionally a signal for a ship in distress, was adopted by the Stop the Steal movement and supporters of Donald Trump contesting Joe Biden’s election as president.

A second report showed that an “Appeal to Heaven” flag, which is associated with Christian nationalism, flew outside Alito’s vacation home last summer. Insurrectionists carried both flags as they stormed the Capitol building. Crucially, the upside-down American flag flew over Alito’s house as the Supreme Court considered whether to hear a 2020 election case — a decision that Alito was ultimately on the losing side of.

In an emailed statement to the Times, Alito didn’t dispute that the upside-down American flag was flown at his home, and he declined to comment on the “Appeal to Heaven” flag. His only defense is to blame his wife, who flew the flag without his input, saying, “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Alito is far from the first powerful man to blame his wife for his own ethical wrongdoing. But as convenient as the justice might find this excuse, Mrs. Alito is not bound by judicial ethics rules — Justice Alito is. Mrs. Alito did not swear an oath to the Constitution — Justice Alito did. It is his responsibility alone to make sure he is following the ethics rules. The public can reasonably assume that Alito’s decisions in cases pertaining to the insurrection are biased in favor of the rioters in question.

It is not unusual for ethics issues to arise from spousal political activity and conflicts of interest across all branches of government. Each may be handled differently, but they all have two things in common: They all assign responsibility for meeting legal and ethical standards to the government official, and no spouse is forced to pursue any type of ethical remediation or restrict their political speech or activity, even if it could have a disqualifying effect on a government official. 

However, there are significant differences in the consequences an official might face if they fail to abide by ethics rules. In the executive branch, failure to satisfactorily resolve spousal conflicts may prevent an official from retaining a government position, and if ignored could result in civil penalties or criminal liability. Meanwhile, Supreme Court justices are required by law to recuse themselves from cases where they have an appearance of impartiality. But without a way to enforce this requirement, Alito can blame his wife without facing any accountability. 

Despite the lack of an enforcement mechanism, Alito is still required to step up and take responsibility for his own actions. To pass the buck and blame his wife instead not only ignores the requirements of the ethics rules and the oath he took to the Constitution, but it also feeds into a long list of misogynistic tropes of women being feeble-minded and unable to comprehend the consequences of their actions. This impression is further perpetuated when the Supreme Court intersperses these tropes into its decisionmaking, as it did in its 2022 decision overturning Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. 

We can’t prevent powerful men like Justice Alito from blaming their wives instead of taking responsibility for their own actions as required under the code and recusal statute. Nor can we change the fact that Alito participated in several cases involving the Jan. 6 insurrection despite having a clear obligation to recuse — including a case brought by our organization, Trump v. Anderson, seeking to enforce the Colorado Supreme Court’s conclusion that Trump was disqualified from holding office via the 14th Amendment.

Rather, what we can and must do is demand that the Supreme Court live up to the modest ethics rules we have imposed on them and recuse when required by the law — as seems to be required here — rather than try to shift blame to a spouse who has no legal obligations under the Constitution.

Virginia Canter is chief ethics counsel and Debra Perlin is policy director at Citizens for Responsibility and Ethics in Washington (CREW).