No one expected Justice Samuel Alito to recuse himself from cases related to January 6, despite the appearance of impropriety from the flags flying at his homes that January 6 rioters also carried. But his explanation Wednesday for refusing to step aside further exposes his inability or unwillingness to understand the problem he is in, leaving important questions unanswered.
To recap how we got here, The New York Times reported on May 16 that an upside-down American flag flew outside Alito’s home in Virginia in January 2021 in the aftermath of the January 6 insurrection. In a statement to the Times, Alito said he was not involved in raising the flag at his home and that it was the work of his wife, Martha-Ann, in response to a neighborhood dispute. He did not explain what (in his opinion) his wife wanted to convey by flying the flag in that way at the time or what he thought about it then or now.
Another Times story published Tuesday questioned Alito’s account by noting, among other things, that his alleged impetus for the flag-raising occurred in February 2021, after the flag had been taken down.
The Times also reported on May 22, in a story that Alito did not comment on, that his New Jersey beach house last summer flew an “Appeal to Heaven” flag, which dates back to the Revolutionary War and has recently been embraced by Christians. nationalists.
There’s a lot going on there. But before I turn to Alito’s strained explanation for his refusal to recuse himself, I’d like to highlight part of the initial Times story, which stated that “neighbors interpreted the inverted flag as a political statement of married couple.” Keep that in mind as you consider the letters the judge sent to Democrats in the Senate and House of Representatives on Wednesday calling for his denial.
In it, he cited the Supreme Court’s new, unenforceable code of conduct. It says that judges are supposed to be impartial and have a duty to hear cases, but that judges must disqualify themselves when their “impartiality could reasonably be questioned, that is, when an unbiased and reasonable person knowledgeable of all relevant circumstances would doubt that the Justice could perform his or her duties honestly.”
Of the upside-down flag that flew outside his house after January 1. 6, Alito wrote that
Okay, so he’s leaning into the my-wife-did-it thing. But even if you accept his story on its own terms, it still raises more questions than it answers, like: Why did he ask his wife to take it down? Is it because he understood the political message (as his neighbors apparently did) that impartial justice has nothing to do with?
Again, even if we (naively) assume that the message was only from his wife, what was her message – and again, what did he think of it, then or now? Alito doesn’t say it. In fact, he writes in his letters that her reasons for flying the flag are “irrelevant for present purposes.”
But they are. Alito himself notes that when deciding on a denial, we must look at “all relevant circumstances.” Yet he cites alleged subjective motivations of his household that he sees as favorable to his position – such as his wife’s “distress” at the time due to her neighborhood feud – while ignoring one of the most important circumstances. Anyway, there is no exception that my wife was angry with the neighbors when overt political messages were displayed in a judge’s house.
Thus, it is more than fair for a reasonable observer to infer, as his neighbors apparently did, the association of the inverted flag with the “Stop the Steal” movement in the 2020 presidential election, which is involved in two major pending decisions of the Supreme Court on Donald Trump’s criminal immunity. in his January 6-related prosecution and more broadly in the indictment against January 6 suspects. Alito writes in his letters that neither he nor his wife were aware of the association of the “Appeal to Heaven” flag with “Stop the Steal,” further implicitly admitting that they were aware of the connection of the reverse flag with that political movement.
Somehow, Alito concludes that “a reasonable person not motivated by political or ideological considerations or by a desire to influence the outcome of cases before the Supreme Court” would think he need not recant. But his analysis – which refuses to acknowledge, let alone grapple with, adverse facts – shows that his judgment is tainted. As a result, this also applies to a court that operates in this way.
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This article was originally published on MSNBC.com
