The contention began after the 2020 election, as reported by The New York Times, when Alito’s home flew an inverted American flag, a display historically meant to signal “distress in instances of extreme danger to life or property,” according to the U.S. Flag Code. Given that angry supporters of former President Donald Trump who questioned the outcome of the election also flew inverted flags post-election, some have suggested that the flag at Alito’s residence conveyed sentiment in support of the notion that the election was stolen. It is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases,” Amanda Frost, a law professor at the University of Virginia, told the Times. In a second incident that drew the ire of Alito’s Democratic critics, a Revolutionary War flag — the “Appeal to Heaven” flag — was flown outside a New Jersey beach house owned by the Supreme Court Justice. This flag was also carried by demonstrators at the Capitol, was commissioned by a secretary of America’s first President George Washington, and was originally meant to signify a plea to a higher power for help saving the American colonies from the rule of England. More recently, the flag’s moniker “Appeal to Heaven” is connected to South Carolina preacher Dutch Sheets, whose movement seeks to ensure the federal government is based on Christian values and backs elected officials who commit to live and govern based on Biblical, constitutional, and federalist principles. After news of the incident broke, Democratic lawmakers began issuing calls for Alito to recuse himself from cases concerning the 2020 presidential election or the Jan. 6 riot at the Capitol. In a May 29 letter to Sen. Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.), Alito explained that his wife is responsible for flying the flags, and that the two incidents do not meet the conditions for recusal. “In considering whether this event requires recusal, an unbiased and reasonable person would take into account the following facts. As I have stated publicly, I had nothing whatsoever to do with the flying of that flag,” Alito wrote. “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 continued by explaining that he and his wife own the home jointly, and that because of both being titled on the home, she also enjoys rights to display what she chooses. “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 explained. Alito also said that her reasons for flying the flag are not relevant, adding that she was “greatly distressed” due to a “very nasty neighborhood dispute” in which he had no involvement. According to the letter, owners of a separate home posted a sign attacking Alito’s wife personally, and a man living in the home followed her down the street and berated her using profanity — specifically, as he wrote, the “vilest epithet that can be addressed to a woman.” Interviews conducted by the Times found that neighbors interpreted the inverted flag as a political statement by the Alitos. “My wife is a private citizen, and she possesses the same First Amendment rights as every other American. She makes her own decisions, and I have always respected her right to do so,” Alito continued in his explanation to the Democratic lawmakers. Concerning the flag hoisted in the backyard of the couple’s New Jersey home, Alito stated his wife also made the decision to fly that flag. “My wife is fond of flying flags. I am not. 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,” he said, while listing an array of flags she’s displayed over the years, including college flags, the flags of sports teams, seasonal flags, and flags from places they have visited. “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,” he wrote, ending the correspondence. “I am therefore duty-bound to reject your recusal request.”U.S. Supreme Court Justice Samuel Alito has rejected demands for his recusal from cases stemming from the Jan. 6, 2021 riot at the Capitol following recent controversy stirred over flags displayed outside his home that his detractors say supported the “Stop the Steal” movement.
