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Supreme Court Justice Samuel Alito said in a letter to lawmakers on Wednesday that he will not recuse himself from cases involving the 2020 presidential election or the Jan. 6, 2021, attack on the U.S. Capitol, despite concerns about two controversial flags flying on his property.
“The two cases you cite do not meet the conditions for judicial recusal,” Justice Alito wrote in a letter circulated by the Supreme Court. “As I have stated publicly, I had no involvement in raising that flag. I was not even aware that the flag was upside down until it was pointed out to me.”
The letter was a highly unusual response, highlighting how the flag revelations have dogged Justice Alito for days. Supreme Court justices rarely debate with lawmakers, and many of them have not explained why they are or aren’t resigning.
01:24 – Source: CNN
See Republicans’ reactions to Justice Alito’s flag controversy
The Supreme Court is hearing key cases related to the 2020 election and the storming of the U.S. Capitol. In one case, the justices are considering former President Donald Trump’s claim of absolute immunity from Special Counsel Jack Smith’s prosecution of election interference charges. In another case, a January 6 rioter is challenging the obstruction charges brought against him by prosecutors, and Congress is arguing that the law should apply to people who destroy evidence, not those who stormed the government building.
Alito repeated his previous assertion about an upside-down U.S. flag flying at his Alexandria, Virginia, home in early 2021, saying the decision to put it up was his wife’s and blaming the decision on a “very nasty neighborhood dispute.”
“My wife is a private citizen and has the same First Amendment rights as every other American,” Alito wrote in one of two letters he sent to lawmakers. “She makes her own decisions and I have always respected that right.”
“My wife likes to fly the flag,” Alito wrote. “I don’t.”
The second controversial flag, the “Appeal to Heaven” flag, which dates back to the Revolutionary War and has become a symbol of Trump supporters, was flown at Alito and his wife’s vacation home in New Jersey. The judge said Wednesday that he was aware of the flag’s existence but did not know how long it had been flying.
Alito said he was not familiar with the flag’s meaning and that his wife, Martha Ann Alito, also flew the flag.
From Google
An August 2023 Google Street View image shows an “Appeal to Heaven” flag flying at U.S. Supreme Court Justice Samuel Alito’s home on Long Beach Island.
“I had no involvement in the decision to fly the flag,” Alito wrote. “I was unaware of any connection between that historic flag and the Stop the Steal movement, and neither was my wife. She did not fly the flag to identify herself with that or any other group, and the fact that a new group uses an older, historic flag does not necessarily diminish the flag’s other meanings.”
Justice Alito cited the code of conduct recently adopted by the Supreme Court in the wake of a series of scandals and said the flag is not grounds for a judge to resign.
Alito said it was his “duty” to refuse calls from lawmakers to step down. One letter was addressed to Sen. Dick Durbin of Illinois, the Democratic chairman of the Senate Judiciary Committee, who had called on Alito to step down from litigation over the Capitol storming. The other was addressed to members of the House of Representatives who had made the same request.
“Any reasonable person not motivated by political or ideological considerations or a desire to influence the outcome of the Supreme Court’s decisions would conclude that the events presented do not meet the test for recusal,” Alito wrote. “Accordingly, I am bound to deny your request for recusal.”
Durbin said in a statement that the committee was reviewing recent reports about Alito as part of its investigation into “ethical lapses by some Supreme Court justices.”
The Illinois Democrat said flying the upside-down flag “is a signal of defiance and raises legitimate questions about bias and fairness in the litigation pending before the court.”
“Ultimately, the Chief Justice can end the precipitous decline in America’s confidence in the Supreme Court by taking decisive action to establish credible standards of conduct,” Durbin said. “I will continue to pursue what the American people want: accountability, transparency and enforceable standards of conduct for Supreme Court justices.”
Senator Sheldon Whitehouse, chairman of the Senate Judiciary Subcommittee that investigates court ethics, used the recent revelations to push for passage of the Supreme Court Ethics, Challenging and Transparency Act, which he introduced last year in response to media reports that Justice Clarence Thomas had withheld financial reports for years.
“Justice Alito’s story is contradicted by other parties’ accounts, and the Supreme Court is the only branch of government that does not have the process for getting to the truth. If the Supreme Court won’t create the process, then we need to. My SCERT Act will do just that,” the Rhode Island Democrat said in a statement.
Rep. Hank Johnson, a Georgia Democrat who sits on the House Judiciary Committee, said Justice Alito’s response shows Congress needs to step in to approve an enforceable ethics rule for the Supreme Court.
“Any fair-minded, reasonable person would find Justice Alito’s ‘the dog ate my homework, and I didn’t even know I had homework’ defense laughable,” Johnson said.
The existence of the flag was revealed by a May 17 report in The New York Times, which published a photo of an upside-down American flag on January 17, 2021.
Following the incident, Justice Alito said in a statement that he had “no involvement whatsoever” in the flag-raising, which his wife had only put up “briefly” in response to signs in a neighbor’s yard, one of which read “F**k Trump.”
Neighbors CNN spoke to following reports about the flag said they remembered it being hung upside down but didn’t know what it meant and there was no public reaction to it at the time.
According to The New York Times, a neighbor involved in an exchange with Justice Martha Ann Alito called police after several encounters with Justice Alito’s wife in early 2021 because she had signs in her yard criticizing Republicans and the judge.
Justice Alito also told Fox News that the neighbor used the word “c*nt” during the exchange.
Photographs obtained by The Times show neighbors holding signs reading “Alito on January 6th” and “Stop the Supreme Court” after Roe v. Wade is overturned in 2022.
This story has been updated with additional details.
CNN’s Jack Forrest, Morgan Rimmer, Tierney Sneed and Holmes Lybrand contributed to this report.
