Justice Samuel Alito refused a demand by Democrat senators that he recuse himself from any Supreme Court cases involving the January 6, 2021 Capitol riot, Trump immunity and 2020 election over flags flown at his residential and vacation homes.
Credit: New York Times/Getty Images
Democrat Senators Dick Durbin (IL), the Senate Judiciary Committee chairman, and Sen. Sheldon Whitehouse (RI), Subcommittee on Federal Corts chairman, had written to Chief Justice John Roberts on May 23 demanding he force Alito to recuse from the cases.
Alito’s letter goes into detail about his wife flying an upside-down American flag at their Northern Virginia home in January 2021 over a dispute with her liberal neighbors neighbors. The dispute has gone on for years, with the neighbors protesting in front of Alito’s home after the June 2022 Dobbs decision returning abortion laws to the states.
“Ms. Baden and her husband protested outside Justice Alito’s home after the court issued the opinion he had written overturning Roe v. Wade. Credit…via Emily Baden” via NY Times, May 28, 2024.
The Alito letter also described his wife’s flying an ‘Appeal to Heaven’ Revolutionary War flag at their family vacation home on Long Beach Island, New Jersey in the summer of 2023.
Image via NY Times article on Alito vacation home flag.
The flag flying controversy was manufactured by the New York Times in what has become a traditional liberal springtime offensive on Republican nominees on the court. The Washington Post had asked Mrs. Alito about the upside-down flag in 2021 and determined it was not a story as it was a dispute between Mrs. Alito and her neighbors.
NY Times articles:
May 16: At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display
May 22: Another Provocative Flag Was Flown at Another Alito Home
May 28: The Alitos, the Neighborhood Clash and the Upside-Down Flag
Alito’s letter:
Dear Senators Durbin and Whitehouse:
This is in response to your letter of May 23 to the Chief Justice requesting that he take steps to ensure that I recuse in Trump v. United States, No. 23-939, and any other cases “related to the 2020 presidential election” or “the January 6th attack on the Capitol”) As the Court has pointed out, “[ijndividual Justices, rather than the Court, decide recusal issues.” I am therefore responding directly to your letter. In it, you claim that two incidents involving the flying of flags created an appearance of impropriety that requires my recusal.
‘The applicable provision of our Code of Conduct states as follows:
“B. DISQUALIFICATION.
(1) A Justice is presumed impartial and has an obligation to sit unless disqualified.
in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” Code of Conduct for Justices of the Supreme Court of the United States, Canon
3B) (1)-(2)
The two incidents you cite do not meet the conditions for recusal set out in (B)(2), and I therefore have an obligation to sit under (B) (1).
The first incident cited in your letter concerns the flying of an upside-down American flag outside the house in Virginia where my wife and I reside. In
1Letter from R. Durbin & S. Whitehouse to C. J. Roberts (May 23, 2024) * Attachmentto lotter from THE CHIEF JUSTICE to R. Durbin (Apr. 25, 2023); Commentary to Code of Conduct for Justices ofthe Supreme Courtofthe United States 11 (Nov. 13, 2023).
considering whether this event requires recusal, an unbiased and reasonable person would take into account the following facts. As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. 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.
My wife and I own our Virginia home jointly. 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.
My wife’s reasons for flying the flag are not relevant for present purposes, but I note that she was greatly distressed at the time due, in large part, to a very nasty neighborhood dispute in which I had no involvement. A house on the street displayed a sign attacking her personally, and a man who was living in the house at the time 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.
My wife is a private citizen, and she possesses the same First Amendment, rights as every other American. She makes her own decisions, and I have always respected her right to do so. 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.
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. I am therefore required to reject your request.
The second incident concerns a flag bearing the legend “An Appeal to Heaven” that flew in the backyard of our vacation home in the summer of 2023. I recall that my wife did fly that flag for some period of time, but I do not remember how long it flew. And what is most relevant here, I had no involvement in the decision to fly that flag.
My wife is fond of flying flags. I am not. 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. In addition to the American flag, she has flown other patriotic flags (including a favorite flag thanking veterans), college flags, flags supporting sports teams, state and local flags, flags of nations from which the ancestors of family members came, flags of places we have visited, seasonal flags, and religious flags. 1 was not familiar with the “Appeal to Heaven” flag when my wife flew it. She may have mentioned that t dates back to the American Revolution, and T assumed she was flying it to express a religious and patriotic message. I was not aware of any connection between this historic flag and the “Stop the Steal Movement,” group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.
As T 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. Our vacation home was purchased with money she 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 does not meet the applicable standard for recusal. Iam therefore duty-bound to reject your recusal request.
Sincerely yours,
Samuel Alito
On Wednesday, the New York Times reported Alito’s hateful neighbors called police on Mrs. Alito (excerpt):
The police in Fairfax County, Va., received an unusual phone call on Feb. 15, 2021. A young couple claimed they were being harassed by the wife of a Supreme Court justice.
“Somebody in a position of authority needs to talk to her and make her stop,” said the 36-year-old man making the complaint, according to a recording of the call reviewed by The New York Times. The officer on the line responded that there was little the police could do: Yelling was not a crime.
The couple placed the call after a series of encounters with Martha-Ann Alito, wife of Justice Samuel A. Alito Jr., that had gone from uneasy to ugly. That day, Emily Baden, whose boyfriend (now husband) contacted the police, had traded accusations with Mrs. Alito, who lived down the street. In a recent interview, Ms. Baden admitted to calling her a lewd epithet.
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