Alito Refuses Calls for Recusal Over Display of Provocative Flags

Justice Samuel A. Alito Jr. said on Wednesday that he would not recuse himself from two cases arising from the Jan. 6, 2021, attack on the Capitol after reports that flags flown over houses he owned appeared to support the “Stop the Steal” movement.

Justice Alito, in letters to members of Congress who had demanded his recusal, said the flags, at his Virginia and New Jersey homes, were flown by his wife, Martha-Ann.

“My wife is fond of flying flags,” the justice wrote. “I am not. She 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.”

He repeated and elaborated on his explanation for an upside-down American flag flown at his home in Virginia in January 2021.

“I had nothing whatsoever to do with the flying of the flag,” Justice Alito wrote. “I was not even aware of the upside-down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.”

He said he had been powerless to remove the flag.

“My wife and I own our Virginia home jointly,” the justice wrote. “She therefore 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.”

Justice Alito added that the “Appeal to Heaven” flag at his New Jersey beach house did not convey the meaning critics ascribed to it.

“I was not aware of any connection between that historic flag and the ‘Stop the Steal Movement,’ and neither was my wife,” he wrote. “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 added: “As I said in reference to the other flag event, my wife is an independently minded private citizen. She makes her own decisions, and I honor her right to do so.”

In sum, he said he would not disqualify himself from the two cases.

“A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases,” Justice Alito wrote, “would conclude this event does not meet the applicable standard for recusal.”