Justice Alito tells Congress he will not recuse from Jan. 6-related cases
Supreme Court Justice Samuel Alito Jr., left, and his wife Martha-Ann Alito, pay their respects at the casket of Reverend Billy Graham at the Rotunda of the U.S. Capitol Building in Washington, Feb. 28, 2018. Alito rejects calls to step aside from Supreme Court cases on Trump and Jan. 6. (AP Photo/Pablo Martinez Monsivais, File)
Justice Samuel A. Alito, Jr. announced Wednesday that he will not recuse himself from Jan. 6-related cases at the Supreme Court after Democratic lawmakers questioned whether he could be impartial following reports that an upside-down flag flew at his home in the weeks after the attack on the U.S. Capitol in 2021.
In a letter to Democratic leaders in the House and Senate, Alito said that flag and a second, religious-themed flag were raised by his wife, without his knowledge, and the incidents do not meet the conditions for recusal outlined in the Supreme Court’s code of conduct.
Alito disclosed for the first time that he was not aware of the upside-down flag until it was called to his attention and that his wife initially resisted taking it down.
“As soon as I saw it, I asked my wife to take it down, but for several days, she refused,” Alito wrote in the letter to Senators Sheldon Whitehouse (D-R.I.) and Dick Durbin (D-Ill.). His wife, he added, “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 upside-down flag—long used as a sign of distress, especially by the U.S. military—has become a symbol of the “Stop the Steal” movement that falsely claims the 2020 election was stolen from Donald Trump.
Another flag carried by Jan. 6 rioters, this one embraced by Christian nationalists who want to find a greater place for religion in public life, was flown outside Alito’s vacation home in New Jersey last summer.
Alito said in the letter that he was not familiar with the “An Appeal to Heaven” flag and that his wife might have mentioned its history, dating back to the American Revolution. He said he was “not aware of any connection between this historic flag and the ‘Stop the Steal Movement,’ and neither was my wife.”
Martha-Ann Alito “did not fly it to associate herself with that or any other group,” the justice wrote, “and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.”
Following news reports about the flags, Democrats asked Alito to decline to participate in deciding a pair of major cases the Supreme Court is slated to rule on in the coming weeks: whether Trump may be criminally prosecuted for his efforts to remain in office after losing the 2020 election, and whether the Justice Department can use an obstruction charge to prosecute more than 300 Jan. 6 rioters.
Alito has previously said that his wife flew the flag because she was upset following a neighborhood dispute involving an anti-Trump yard sign and another that said, “You are complicit.”
He told lawmakers Wednesday that in addition to the “very nasty neighborhood dispute” involving his wife, she has made many sacrifices to accommodate his work on the Supreme Court, including being subject to “loud, obscene, and personally insulting protests in front of our home” that began after Alito authored the majority opinion in 2022 to overturn Roe v. Wade and eliminate the nationwide right to abortion.
“My wife is a private citizen, and she possesses the same First Amendment rights as every other American,” Alito wrote. “She makes her own decisions, and I have always respected her right to do so.”
Last fall, in response to other controversies over the court’s ethics, the Supreme Court adopted for the first time a code of conduct that applies specifically to the nine justices. The code says a justice should disqualify from cases in which the justice’s “impartiality might reasonably be questioned,” where an unbiased person familiar with all the facts and circumstances “would doubt that the justice could fairly discharge his or her duties.”
In rejecting the lawmakers’ request to step aside from the cases related to the 2020 election, Alito wrote 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 the Supreme Court cases” would conclude that the flag-flying at his homes do not require recusal.
