Justice Alito tells Congress he will not recuse from Jan. 6-related cases

Justice Samuel A. Alito, Jr. on Wednesday rejected calls to recuse himself from Jan. 6-related cases at the Supreme Court after Democratic lawmakers questioned whether he could be impartial following reports that an upside-down flag flew at his home in the weeks after the attack on the U.S. Capitol in 2021.

In a letter to Democratic leaders in the House and Senate, Alito said that flag and a second, religious-themed flag also embraced by Jan. 6 rioters, were flown by his wife without his knowledge, and the incidents do not meet the conditions for recusal outlined in the Supreme Court’s code of conduct.

Alito disclosed for the first time that he was not aware of the upside-down flag outside his home in the Alexandria section of Fairfax County, Va., until it was called to his attention and that his wife initially resisted taking it down.

“As soon as I saw it, I asked my wife to take it down, but for several days, she refused,” Alito wrote in the letter to Sens. Dick Durbin (Ill.) and Sheldon Whitehouse (R.I.), who oversee the federal courts in their respective roles as chairmen of the Senate Judiciary Committee and a judicial oversight subcommittee.

“My wife is fond of flying flags. I am not,” he added, “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.”

The upside-down flag — long used as a sign of distress, especially by the U.S. military — has become a symbol of the “Stop the Steal” movement that falsely claims the 2020 election was stolen from Donald Trump.

Another flag carried by Jan. 6 rioters, this one embraced by Christian nationalists who want to find a greater place for religion in public life, was flown outside Alito’s vacation home in New Jersey last summer.

Alito said in the letter that he had not been familiar with the “Appeal to Heaven” flag when his wife flew it, but that she may have mentioned its history, which dates back to the American Revolution. He said he “assumed she was flying it to express a patriotic and religious message.”

The justice wrote that he was “not aware of any connection between this historic flag and the ‘Stop the Steal Movement,’ and neither was my wife.”

Martha-Ann Alito “did not fly it to associate herself with that or any other group,” the justice wrote, “and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.”

He did not make the same distinction for the upside down American flag flown at their Virginia home.

Following news reports about the flags, Democrats asked Chief Justice John G. Roberts Jr. to ensure that Alito would not participate in deciding a pair of major cases the Supreme Court is slated to rule on in the coming weeks: whether Trump may be criminally prosecuted for his efforts to remain in office after losing the 2020 election, and whether the Justice Department can use an obstruction charge to prosecute more than 300 Jan. 6 rioters.

Individual justices decide for themselves whether to recuse, and it was Alito who responded to lawmakers on Wednesday.

Alito has previously said that his wife flew the upside-down flag because she was upset following a neighborhood dispute involving an anti-Trump yard sign.

He told lawmakers Wednesday that her reasons for raising the flag “are not relevant for present purposes,” even as he again noted her distress at the time “due, in large part, to a very nasty neighborhood dispute.”

The letter also noted that Martha-Ann Alito has made many sacrifices to accommodate the justice’s work on the Supreme Court, including being subject to “loud, obscene, and personally insulting protests in front of our home” that began after Alito authored the majority opinion in 2022 to overturn Roe v. Wade and eliminate the nationwide right to abortion.

The Alitos and neighbors have offered conflicting accounts of who started the dispute and how it unfolded.

Alito previously said in an interview with a Fox News reporter that a neighbor displayed an anti-Trump sign with an expletive in January 2021. Mrs. Alito complained to the neighbor the sign was near a school bus stop and an argument ensued.

In a narrative he repeated in Wednesday’s letter, Alito said the neighbor then put up a sign directly attacking his wife and blaming her for the Jan. 6 attacks. Alito said the couple were out walking and a fight ensued with a man at the neighbor’s home, during which the man called Martha-Ann a derogatory name for a part of the female anatomy. In his letter, Alito called the term “the vilest epithet that can be addressed to a woman.”

Alito told Fox News his wife was distressed over the encounter, so she flew the upside-down flag.

A woman who lives down the street from the Alitos and spoke on the condition of anonymity to protect her privacy told The Washington Post earlier this month that her adult daughter brought home signs from a protest and put them up in front of their home. The woman said Martha-Ann Alito made comments about the signs while passing one day, and a heated argument ensued.

The New York Times reported Tuesday that there was a discrepancy in Alito’s story. A police call indicated the incident during which his wife was called a derogatory name occurred on Feb. 15, weeks after the upside-down flag was flown.

A Washington Post reporter, who got a tip about the flag flying upside down in January, 2021, went to the Alitos’ at that time to investigate it and spoke to the couple, but did not report the incident at the time.

Martha-Ann Alito shouted that the flag was, “an international signal of distress!” and told the reporter, who is now retired, to get off their property. She and her husband suggested the flag was raised in response to an argument with neighbors.

The Washington Post did not report on the encounter at the time because it was not clear then that the argument was rooted in politics and because Justice Alito said Martha-Ann Alito was the one who raised the flag.

Alito and his wife did not immediately respond to requests for comment Tuesday. Durbin and Whitehouse also did not immediately comment.

Last fall, in response to other controversies over the court’s ethics, the Supreme Court adopted for the first time a code of conduct that applies specifically to the nine justices. The code says a justice should disqualify from cases in which the justice’s “impartiality might reasonably be questioned,” where an unbiased person familiar with all the facts and circumstances “would doubt that the justice could fairly discharge his or her duties.”

Ethics experts have said that displaying politically charged symbols outside a justice’s home is enough to create the appearance of impartiality. But Alito, in his letter, took a different approach about the two flags.

“My wife is a private citizen, and she possesses the same First Amendment rights as every other American,” Alito wrote. “She makes her own decisions, and I have always respected her right to do so.”

In rejecting the lawmakers’ request to step aside from the cases related to the 2020 election, Alito wrote that he is “confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of the Supreme Court cases” would conclude that the flag-flying at his homes do not require recusal.