Alito tells congressional Democrats he won't recuse over flags

Justice Samuel Alito is flatly rejecting calls to recuse himself in two cases before the Supreme Court involving former President Donald Trump because of two flags that flew outside his homes.

In letters Wednesday to House and Senate Democrats, Alito said he had nothing to do with the flying of the flags, and that nothing about the incidents merited recusal under the Supreme Court's code of conduct. In addition, he says, neither he nor his wife knew of the meanings that are now being ascribed to the flags.

"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 in the letters to Democrats. "I am therefore duty-bound to reject your recusal request."

Democrats had seized on New York Times reports that an upside-down American flag had flown outside the Alitos' Virginia home and a separate "Appeal to Heaven" flag had flown outside his vacation home. They argued the two incidents create an appearance of impropriety that require Alito recuse himself from any matters related to the Jan. 6 Capitol riot or the 2020 election.

But going back to 2021, Alito, who was nominated to the Supreme Court by President George W. Bush, has consistently said he had nothing to do with the flying of any flag, which he has said was solely an interest of his wife's. He emphasized that point in both of his letters.

On the upside-down American flag that flew briefly outside his Virginia home in 2021, he said in the letters that he had asked her to take it down, and she eventually agreed to do so.

"My wife's reasons for flying the flag are not relevant for present purposes," he wrote, "but I know she was greatly distressed at the time due, in large part, to a very nasty neighborhood dispute in which I had no involvement."

Alito wrote that a house on the street displayed a sign attacking his wife personally, and a man living there at the time followed her 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," Alito continued. "She makes her own decisions, and I have always respected her right to do so."  

That is consistent with the Alitos' position dating back to 2021, when they were confronted as they were leaving their home by a Washington Post reporter who had been tipped off by a neighbor three years ago about the upside-down flag.

When the reporter asked about the flag, the Post said Martha-Ann Alito yelled, "it's an international signal of distress!"

The Post detailed the incident in a piece Saturday, explaining why it decided not to publish the story in 2021.

"The justice denied the flag was hung upside down as a political protest, saying it stemmed from a neighborhood dispute and indicated that his wife had raised it," the Post said.

The Post then proceeded to describe the reporter's 2021 encounter with the Alitos outside their home, saying Martha-Ann Alito told the reporter, in apparent reference to the neighbors, "Ask them what they did!'"

The Post reporter then observed Martha-Ann Alito get out of the car "and then brought out from their residence a novelty flag, the type that would typically decorate a garden. She hoisted it up the flagpole. 'There! Is that better?' she yelled."

That reporting in 2021 is consistent with Tuesday's most recent New York Times story detailing the neighborhood dispute. The Post said it did not publish the story because it was an ongoing neighborhood dispute with Matha-Ann Alito that did not implicate the justice.

"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," Alito wrote in the letters.

On the "Appeal to Heaven" flag, Alito says it also was flown by Martha-Ann Alito. He said he had nothing to do with it, and neither of them saw other meanings in the flags.

He also said she did not fly it to associate herself with "Stop the Steal" or any other group.

"As I said in reference to the other flag event, my wife is an independently minded private citizen," Alito wrote. "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."

The justice told House and Senate Democrats that his wife was responsible for the flagpoles put up at their Virginia home and New Jersey vacation house, and said she has displayed a variety of flags in the past, including patriotic flags, college flags, those supporting sports teams, flags from places they've visited, and religious flags. 

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

He said that Martha-Ann Alito may have mentioned that the "Appeal to Heaven" flag dates back to the American Revolution, but he assumed it was being displayed to express a "religious and patriotic message."

"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," Alito wrote.

One of the letters was addressed to Senate Judiciary Committee Chairman Dick Durbin and subcommittee head Sheldon Whitehouse, who requested a meeting with Chief Justice John Roberts and urged him to take steps to ensure Alito recused himself from cases pending before the Supreme Court involving Trump's claim of presidential immunity and the Jan. 6 attack. 

Durbin said in a statement Wednesday, "Justice Alito's response clearly demonstrates why the Supreme Court needs an enforceable code of conduct." He said, "Flying the American flag upside down at his home is a signal of defiance, which raises reasonable questions about bias and fairness in cases pending before the Court." And Durbin called on the chief justice to "end this spiraling decline in America's confidence in our highest Court by taking decisive action to establish a credible code of conduct." 

In a separate statement, Whitehouse said,"Justice Alito's story conflicts with the accounts of other people involved, and the Supreme Court — uniquely in all of government — has no mechanism for getting to the truth," and he added that legislation he has proposed "would do that."

The second letter was sent to a group of House Democrats who called for Alito to step aside in the cases.

Last year, in response to a similar request to appear before the Senate Judiciary Committee, the chief justice said because of separation of powers concerns, it would be inappropriate for him to appear to discuss ethics or other matters that may go before the court.

A meeting with members of only one party to discuss issues that may relate to pending cases before the court would be unprecedented for a chief justice.

Melissa Quinn, Scott MacFarlane and Nikole Killion contributed to this report.

Jan Crawford

Jan Crawford is CBS News' chief legal correspondent and a recognized authority on the Supreme Court. Her 2007 book, "Supreme Conflict: The Inside Story of the Struggle for the Control of the United States Supreme Court" (Penguin Press), gained critical acclaim and became an instant New York Times Bestseller.

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