Justice Alito refuses to recuse himself from Jan. 6 cases after flag controversies

ByDevin Dwyer ABCNews logo
Thursday, May 30, 2024

Supreme Court Justice Samuel Alito is rejecting Democrats' calls for his recusal from cases related to the Jan. 6 Capitol attack and the 2020 election after flags flown at his personal residences sparked controversy.

Alito provided further details of the incidents as he responded to Senate Judiciary Committee Chairman Dick Durbin and Sen. Sheldon Whitehouse's request to Chief Justice John Roberts that Alito recuse himself from such proceedings.

The flag-flying incidents, first reported by the New York Times, included an upside-down American flag outside his Virginia home and an "Appeal to Heaven" flag at the couple's New Jersey beach house -- both symbols carried by some rioters on Jan. 6.

Alito told lawmakers the incidents were not in any way his doing. He revealed that in the case of the upside-down American flag -- which he said was raised by his wife Martha-Ann Alito during a "nasty neighborhood dispute" -- he actually told his wife to take it down and that she refused for several days.

"My wife is fond of flying flags. I am not," he wrote. "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 said his wife is an "independently minded private citizen" who possesses First Amendment rights like "every other American."

"She makes her own decisions, and I have always respected her right to do so," he wrote. "She has made many sacrifices to accommodate my service on the Supreme Court, including the insult of having to endure numerous, loud, obscene, and personally insulting protests in front of our home that continue to this day and now threaten to escalate."

As for the "Appeal to Heaven" flag spotted at their vacation home, Alito said he was not aware of it until recently, and neither he nor his wife were conscious of its connections to the "Stop the Steal Movement." Alito also noted his wife purchased the home and the title is in her name.

"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," he wrote in the letter.

The flag dates back to the Revolutionary War but more recently has been linked to Christian nationalism and "Stop the Steal" after the 2020 election.

The justice, quoting from the Code of Conduct adopted by the high court last year that leaves enforcement up to the justices themselves, argued that the facts and circumstances do not meet the bar for recusal and that he will not do so.

"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 recounted above do not meet the applicable standard for recusal," Alito wrote. "I am therefore required to reject your request."

Sens. Durbin and Whitehouse, in their May 23 letter requesting his recusal over the displays, wrote Alito "actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promotes public confidence in the impartiality of the judiciary."

"He also created reasonable doubt about his impartiality and his ability to fairly discharge his duties in cases related to the 2020 presidential election and January 6th attack on the Capitol," the two wrote.

The Supreme Court is dealing with several blockbuster cases on those issues. In the coming weeks, the justices will issue opinions on whether Donald Trump is entitled to immunity from prosecution for his efforts to stay in power after the 2020 election, and whether prosecutors improperly charged hundreds of Jan. 6 rioters with felony obstruction.

ABC News' Alexandra Hutzler contributed to this report.

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