Justice Alito Won’t Recuse Himself From Jan. 6 Cases After Flag Incidents

WASHINGTON, D.C. — U.S. Supreme Court Justice Samuel Alito won’t recuse himself from Jan. 6 or 2020 election-related cases amid the controversy surrounding a New York Times report that his household flew an upside-down flag — a symbol associated with the “Stop the Steal” movement — in January of 2021.

Alito sent a letter Wednesday in response to Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.). The lawmakers sent a letter last week to Chief Justice John Roberts requesting that he take steps to ensure that Alito recuses himself in any cases related to the 2020 presidential election and Jan. 6, 2021 attack on the U.S. Capitol “including the question of former President Trump’s immunity from prosecution for his role in the events of January 6th in Trump v. United States.”

“We write regarding recent New York Times reports that an upside-down American flag was displayed in Justice Samuel Alito’s yard in January 2021,” the May 23 letter says, “and another flag associated with the January 6th attack on the Capitol was flown at another of Justice Alito’s residences in the summer of 2023.”

The letter refers to revelations first reported in the New York Times that Alito’s Virginia household flew an upside-down flag days after the Jan. 6 attack. The publication also reported that a second flag was flown at Alito’s New Jersey vacation home in July and September of 2023. The second flag reportedly featured the words “Appeal to Heaven,” and is associated with the Christian Nationalism movement.

In a May 22 statement, Durbin, who is chair of the Senate Judiciary Committee, said Alito must recuse himself immediately from 2020- and Jan. 6-related cases, and that Roberts “must see how this is damaging the Court and immediately enact an enforceable code of conduct.”

In a statement to the Times, Alito said that in the first instance, the flag was “briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs,” the statement said.

In Alito’s letter, which marks the first time the justice has elaborated on the controversy, he says neither incident meets the conditions for recusal under the Court’s code of conduct, which states that a justice should disqualify themselves in a proceeding “in which the Justice’s impartiality might reasonably be questioned …”

“As I have stated publicly,” Alito says in the letter, “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.”

Regarding the second incident, Alito says he recalls that his 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.”

Alito ends the letter by stating that a reasonable person who isn’t motivated by “political or ideological considerations” would conclude that the incidents don’t warrant a recusal.

But ethics experts told the Times that the optics are concerning. “We all have our biases, but the good judge fights against them,” Charles Geyh, a law professor at Indiana University Bloomington, told the paper. 

Read more about Trump’s federal Jan. 6 indictment here.

Read Justice Samuel Alito’s letter here.