Justice Samuel Alito

U.S. Supreme Court Associate Justice Samuel Alito appears before a House Appropriations Committee hearing on March 7, 2019 in Washington, D.C.

(Photo: Chip Somodevilla/Getty Images)

Blaming Wife for Insurrection Flags, Alito Refuses to Recuse From Trump Cases

"It's hard to read this comically bad letter as anything other than a challenge to Congress to either assert its constitutional authority or admit fecklessness," said one group.

Despite his family's display of two flags associated with the "Stop the Steal" movement that baselessly claims the 2020 election was stolen from former President Donald Trump, U.S. Supreme Court Justice Samuel Alito said Wednesday that he will not recuse himself from two cases that pertain to the election and Trump supporters' effort to stop the results from being certified.

The justice wrote to the House of Representatives and the Senate to tell lawmakers that his wife, Martha-Ann Alito, was solely responsible for flying the two flags on the family's properties in Virginia in 2021 and New Jersey last year.

Justice advocates and Democrats in Congress have called on Alito to recuse from a case regarding Trump's claim that he has immunity from federal election interference charges and one in which the court is deliberating whether defendants who participated in the January 6, 2021 attempted insurrection should be charged with obstructing an official proceeding.

The demands for recusal—not the first to target Alito—came in recent weeks after The New York Times reported that an upside down flag had flown at his family home in Virginia just after January 6, and that a flag reading, "Appeal to Heaven" had been displayed last year at his New Jersey beach house, right around the time that one of the cases arrived at the Supreme Court.

Both flags were carried by some rioters on January 6 and have been embraced by the Stop the Steal movement.

The display of the flags, said Alito, "do not meet the conditions for recusal set out" by the court's ethics code, which was introduced last year and does not include an enforcement mechanism.

In his letters, Alito suggested that the push for accountability for the flag displays represents a violation of his wife's rights, noting that "she has the legal right to use the property as she sees fit."

"She makes her own decisions, and I have always respected her right to do so," wrote Alito, leading one progressive strategist to point out that the justice wrote the majority opinion in the Supreme Court ruling that revoked the constitutional right to obtain abortion care.

Brett Edkins, managing director of policy and political affairs for Stand Up America, called on the Senate to take "immediate action" to stop Alito's "bald-faced display of judicial misconduct."

"Justice Alito's refusal to recuse himself from cases related to January 6th is unacceptable," said Edkins. "By dismissing concerns about potential bias and conflicts of interest and placing the blame on his wife, he is making a mockery of the fundamental principles of impartiality and fairness upon which the Supreme Court was founded."

Edkins called on Senate Majority Leader Chuck Schumer (D-N.Y.) to "schedule a floor vote on a binding code of conduct for justices" and urged Sen. Dick Durbin (D-Ill.) to "fulfill his duty as chair of the Senate Judiciary Committee by launching a thorough investigation into Justice Alito's actions and corruption on the court."

Durbin sent a letter last week to Chief Justice John Roberts asking him to support the call for Alito's recusal and requesting a meeting with him, but progressives have said the senator should go further to ensure accountability for Alito's actions.

Rep. Alexandria Ocasio-Cortez (D-N.Y.) said last week that the Senate Judiciary Committee should subpoena Alito and open a formal investigation into his family's display of the flags.

Sarah Lipton-Lubet, president of Take Back the Court Action Fund, said Wednesday that it was tempting to "make fun of Alito for scribbling off the judicial equivalent of a 'my wife ate my homework' note."

"But the joke will be on all of us if Congress lets this be the last word on his recusal from election-related cases," said Lipton-Lubet. "It's hard to read this comically bad letter as anything other than a challenge to Congress to either assert its constitutional authority or admit fecklessness."

The court is expected to rule on the two Trump-related cases in late June.

Advocates have previously called on Alito to recuse from certain cases after it was revealed that he benefited from luxury travel paid for by a billionaire who had had business before the court.

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