The Supreme Court Justice Samuel Alito flag-flying controversy will not go away. The latest in a string of calls to recuse himself comes from one of his former law clerks. Last month, controversy surfaced when the New York Times reported that Alito’s home has displayed two flags linked to the MAGA January 6, 2021 riot.
Alito has stated that his wife was responsible for the flag incidents, and has refused to recuse himself from cases involving former President Trump.
Former Law Clerk’s Reaction
Professor Susan Sullivan clerked for Alito years ago when he was on the Third Circuit Court of Appeals. She wrote an op-ed in the Philadelphia Inquirer stating that she was “aghast” when she saw the news reporting that Alito’s home had once flown an upside-down flag associated with the Capitol riot. She further stated, “I’ve never known Justice Alito to be anything other than an honorable man, to be a man of integrity.”
Symbolic Significance
In further interviews Sullivan stated, “This is not an insignificant symbol. Irrespective of why it is there, who put it there, it shouldn’t have been there. The problem is, that flag is incendiary, and it cannot do anything other than raise a reasonable inference of bias.”
Continued Challenges to Alito
Challenges to Alito have piled on following the New York Times reporting. He has faced pressure to recuse himself from several national leaders and has refused to do so. In June, Alito told lawmakers in a letter to the Senate Judiciary Committee, “The two incidents you cite do not meet the conditions for recusal…and I therefore have an obligation to sit [for the cases]…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.”
Alito’s Defense
Alito went further in the letter to state that his wife, as a co-owner of the property, had the constitutional right to express her opinion via the flag being flown. He stated that she “has the legal right to use the property as she sees fit.”
“Stop the Steal” Movement Connection
The flag in question has been tied to the “Stop the Steal” movement to discredit the outcome of the 2020 election which went to President Joe Biden. The movement attempted to prevent Biden from taking office based on allegations of widespread election fraud.
Additional Reporting on Flags
Days after the first reporting of the upside-down flag being flown at the Alito residence, the New York Times published a second story about an additional flag that was flown at the house that was also connected to the “Stop the Steal” movement.
Historical Context of the “Appeal to Heaven” Flag
This flag is known as the “Appeal to Heaven” and dates back to the Revolutionary War. The image of the flag has been used by Trump supporters, and was also on display at the January 6 riots. However, the origin of the flag far predates any current political movement.
Implications for Upcoming Cases
Part of the urgency and thrust of the challenge is that Alito is soon expected to rule on two cases that touch on the January 6, 2021 attack at the Capitol, and directly touch on the Presidential immunity protection. Alito has already been involved in Supreme Court decisions that invalidated a Colorado state ban on listing Trump as a candidate in the presidential election.
Criticism and Calls for Recusal
Critics say that Alito has shown his hand in the political controversies regarding President Trump, and should therefore not be involved in decisions impacting the outcome of the 2024 Presidential election.
Democratic Lawmakers’ Response
As is somewhat predictable, Democratic lawmakers have tirelessly called for Alito’s recusal, even going so far as attempting to meet with Chief Justice John Roberts to apply pressure to the situation. Justice Roberts refused the meeting invitation and has echoed Alito’s reasoning. The Judiciary is supposed to be independent of politics and partisanship.
Republican Lawmakers’ Support
On the Republican side, lawmakers have supported Alito’s decision, even if they agree that it was imprudent for Alito to allow such a display on his property.
Defense from John Bolton
Among other notable figures, former National Security Advisor John Bolton stood up for Alito in regard to flying the Revolutionary War “Appeal to Heaven” flag. Bolton said, “It’s controversial for liberals who have it in for Sam Alito. It’s not controversial for me, and I’m as against Donald Trump as anybody I know in this country.”
Expropriation of Patriotic Symbol for Political Ends
He also pointed out that “The January 6 people flew a lot of flags. They don’t have the right or ability to expropriate a patriotic symbol of the United States, and then have everybody else say it belongs to them and condemn Sam Alito or anybody else for flying that flag.”
