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Alito rejects requests to step aside from Trump-related cases

Some Democrats said flag-flying incidents at the Alito homes raised questions about his impartiality

Justice Samuel A. Alito Jr. sits during a group photo of the justices at the Supreme Court.
Justice Samuel A. Alito Jr. sits during a group photo of the justices at the Supreme Court. (Erin Schaff/The New York Times file photo)

Supreme Court Justice Samuel A. Alito Jr. told Congress on Wednesday he would not step aside from cases involving former President Donald Trump, in the wake of news reports that two flags tied to the effort to overturn the 2020 election were flown outside his properties.

In a pair of letters to Democrats in the Senate and House, Alito rejected the request from the lawmakers that he recuse himself in a case about whether Trump as a former president is immune from criminal charges, as well as cases related to the 2020 election or the Jan. 6, 2021, attack on the Capitol.

Alito, one of the most conservative members of the Supreme Court, cited the court’s code of conduct that justices should disqualify themselves when an unbiased person might reasonably question their impartiality.

The flag-flying incidents did not meet those conditions, Alito wrote, and implied that efforts to get him to recuse were based on a desire to influence the result.

“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 does not meet the applicable standard for recusal,” Alito wrote. “I am therefore duty bound to reject your recusal request.”

Alito detailed how his wife was responsible for flying an upside-down American flag outside their Virginia home in the days after the Jan. 6, 2021, attack on the Capitol and an “Appeal to Heaven” flag at the couple’s New Jersey beach home in 2023.

The New York Times first reported both incidents earlier this month, sparking a flurry of congressional criticism and calls for Alito to recuse himself from the Trump case. The news reports said supporters of Trump’s effort to overturn the 2020 election had also displayed the flags.

Senate Judiciary Chair Richard J. Durbin, D-Ill., and Sen. Sheldon Whitehouse, D-R.I., wrote to Chief Justice John G. Roberts Jr. last week asking for a meeting about Alito and ethics issues more broadly.

Durbin and Whitehouse wrote that the flag displays called Alito’s impartiality into question and dovetailed with long-standing concerns about the court’s ethics.

“By displaying the upside-down and ‘Appeal to Heaven’ flags outside his homes, Justice 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,” the senators wrote.

Alito also responded to a letter sent directly to him by Rep. Hank Johnson, D-Ga., and 44 other House Democrats. In that letter, the lawmakers called for Alito to recuse himself from the Trump case and a second one involving charges stemming from the Jan. 6, 2021, attack on the Capitol.

“Even if you had ‘no involvement’ in the display yourself, the fact of such a political statement at your home creates, at minimum, the appearance of improper political bias,” the House Democrats’ letter said.

Alito wrote that he had no involvement in the decision to fly either flag, and actually asked his wife to take the flag at their Virginia home down several times. Alito said she flew an upside-down American flag amid a dispute with neighbors.

“She makes her own decisions and I honor her right to do so,” the letter said.

Separately, Alito said his wife made the decision to fly a flag known as the “Appeal to Heaven,” a white flag which carries those words above a conifer tree, outside his wife’s vacation home in New Jersey.

The flag, which was carried by supporters of Trump throughout his first term, was also carried by rioters who stormed the Capitol. Speaker Mike Johnson, R-La., has flown the flag outside his congressional office.

Alito said his wife mentioned the flag had historical roots dating back to the American Revolution, and that neither of them were aware of its modern use by those connected to the attack.

“The use of an old flag by a new group does not necessarily drain that flag of all other meanings,” the letter said.

Alito has chafed at congressional oversight efforts in the past year, including in a rare media interview where he said Congress has no “authority to regulate the Supreme Court — period.”

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