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Justice Alito declines to recuse himself in Jan. 6-related cases

Justice Samuel Alito has declined to recuse himself from two Jan. 6-related cases, including one involving presidential immunity.
Alex Wong
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Justice Samuel Alito has declined to recuse himself from two Jan. 6-related cases, including one involving presidential immunity.

Supreme Court Justice Samuel Alito declined Wednesday to recuse himself from two Jan. 6-related cases despite calls to do so after news reports said controversial flags were flown outside his properties.

In almost identical letters to Senate and House leaders, Alito wrote that calls from members of Congress for his recusal “do not meet the conditions” as set out by the Supreme Court’s code of ethics, which leaves it up to individual justices to decide on whether to recuse themselves or not.

The letters follow two New York Times reports that said an upside down American flag was flown outside the home Alito shares with his wife in Virginia and that an “Appeal to Heaven” flag was flown outside the couple’s New Jersey vacation home. Both flags have been linked to supporters of former President Trump who falsely believe that the 2020 election was stolen.

In the letters, Alito reiterated that it was his wife’s decision to fly both flags, adding that neither he nor his wife was aware of the modern political connotations associated with the flags.

The Supreme Court, where Alito and his fellow conservatives enjoy a 6-3 supermajority, is considering two cases related to Jan. 6. The first relates to Trump’s claims of immunity in his federal election interference case; the second is an appeal brought by a man convicted for his role in the Capitol riot. Decisions in the cases are expected this summer.

Democratic lawmakers argued that the flags outside Alito’s home meant he was unable to be impartial in the cases.

“My wife is fond of flying flags,” Alito wrote. “I am not.”

He said the upside down U.S. flag was in response to a “very nasty” dispute with a neighbor that made his wife “greatly distressed.”

"A house on the street displayed a sign attacking her personally and a man who was living at the house trailed her all the way down the street and berated her in my presence using foul language, including what I regard as the vilest epithet that can be addressed to a woman," Alito wrote.

Alito wrote that he had asked his wife to take it down once he became aware of it, but she declined for several days.

“My wife is a private citizen, and she possesses the same First Amendment rights as every other American,” he added.

The Times reported that a couple in the neighborhood had a dispute with Martha-Ann Alito and had at one point called the police because they felt she was harassing them. The couple told the newspaper that their dispute occurred after the flag was taken down.

The second flag that has stirred controversy was at the Alito’s beach house in New Jersey. It is a flag that dates back to the American Revolution bearing the legend “An Appeal to heaven,” but in recent times it has come to be associated with Christian Nationalism and the Stop the Steal movement. Alito said in his letter that neither he nor his wife was aware of that association, and that in any event, it is Mrs. Alito who is the flag-flier in the family, erecting flag poles at both residences and flying a wide array of flags, including flags “thanking veterans, college flags, flags supporting sports teams…flags of places we have visited, seasonal flags, and religious flags.”

Alito acknowledged that the beach home flag may have flown over the couple’s vacation home for “some period of time” in the summer of 2023, but he had “no involvement in the decision to fly that flag.” Moreover, he observed, “Our vacation home was purchased with money [Mrs. Alito] inherited from her parents and is titled in her name. It is a place away from Washington, where she should be able to relax.”

“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” as well as the flag outside the couple’s suburban Virginia home, do “not meet the applicable standard for recusal,” Alito concluded, adding that he is therefore “duty-bound” to participate in both the Trump immunity case, and the case that challenges some of the most serious charges used to prosecute the Jan. 6 rioters.

Copyright 2024 NPR

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.