Justice Alito wanted his wife to lower flag but won't publicly concede optics problem: ANALYSIS

He claims he and his wife were unaware of its association with Jan. 6.

May 31, 2024, 8:49 AM

For the second straight week, Justice Samuel Alito handed down a Supreme Court opinion at the same time as he was publicly confronting questions about his ability to render judgments without the appearance of bias.

Alito on Thursday authoritatively rejected the appeal of an Arizona man on death row for murder and seeking a resentencing over claims his attorney provided ineffective counsel.

After "an evaluation of the strength of all the evidence and a comparison of the weight of aggravating and mitigating factors," the defendant did not deserve a second chance, Alito wrote for the six-justice conservative majority.

Associate Justice Samuel Alito sits during a group photo of the Justices at the Supreme Court in Washington, DC, April 23, 2021.
Erin Schaff-Pool/Getty Images

Weighing facts and evidence was the same approach Alito used one day earlier to render judgment on his own conduct, swatting away allegations by Democrats that two flags flying outside his private homes had rendered him unfit to sit in a pair of cases related to the Jan. 6 Capitol attack.

The flags -- an upside-down American flag on a pole outside his Virginia home and a Revolutionary War-era "Appeal to Heaven" flag outside his New Jersey vacation home -- were among those carried by members of the pro-Trump mob back in 2021.

Pro-Trump protesters gather in front of the U.S. Capitol Building, on Jan. 6, 2021, in Washington, D.C.
Brent Stirton/Getty Images, FILE

Alito says the couple was not aware of associations with the rioters, rejected any implied solidarity with their "Stop the Steal" movement, and put responsibility for both flag displays squarely on his wife. "She makes her own decisions, and I honor her right to do so," he wrote in a letter to members of Congress.

"I am confident that 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 the facts… do not meet the applicable standard for recusal," he told the lawmakers, rejecting their demands that he step aside.

An Appeal To Heaven flag is pictured as people gather at Independence Mall to support former President Donald Trump during his visit to the National Constitution Center to participate in the ABC News town hall, Sept. 15, 2020, in Philadelphia.
Michael Perez/AP, FILE

It was the uncompromising tone of Alito's response that many veteran court analysts say could be more harmful to the high court's reputation than the political debate over recusal and the ability of each individual justice to make such a decision on his or her own.

"To me, the real problem is how completely unconciliatory and unapologetic he has been about this episode," said Stephen Vladeck, a University of Texas Law professor and veteran Supreme Court analyst.

Only 39% of adults surveyed by Marquette University Law School last month -- before the Alito flag story broke – said they approved of the Supreme Court; a striking 61% disapproved – the highest level of the past five years. A majority – 56% – said the justices' decisions are based mainly on politics rather than law.

Supreme Court Justice Samuel Alito Jr., left, and his wife Martha-Ann Alito, pay their respects at the casket of Reverend Billy Graham at the Rotunda of the U.S. Capitol Building in Washington, Feb. 28, 2018.
Pablo Martinez Monsivais/AP, FILE

"Maybe it was all Martha-Ann [Alito, the justice's wife, who raised the flags]. Maybe he did really try to convince her to take the flag down. But that seems to be almost conceding that he understands that it was a problem that this flag was flying outside his house," Vladeck said.

The court's code of conduct, which Alito has signed, urges the justices to avoid the mere appearance of bias or impropriety.

While Alito told lawmakers he thought the upside-down American flag in front of his home should be removed, he has not explained why or acknowledged that reasonable people could harbor legitimate concerns after seeing it.

"At the time these flags were raised, they were understood by at least a lot of people, if not by everyone, that they had a meaning. And it was both, I think, a political and in some ways a legal meaning," said Kate Shaw, a professor of law at the University of Pennsylvania Law School and ABC News legal contributor.

"The political meaning of the flag was that Donald Trump was the rightful winner of the 2020 election and the election was stolen," Shaw said. "That's a political claim, but also a claim with some legal implications because it does bear directly on two cases before the court."

Alito insists his wife "did not fly it to associate herself with that or any other group."

At its base, the flag episodes and Alito's responses highlight the limits of oversight of the nation's highest court, even with its newly adopted Code of Conduct.

"Justice Alito's public statement, on its face, seems to be a step toward more Supreme Court transparency," said Kedric Payne, vice president, general counsel and senior director for ethics at the nonpartisan Campaign Legal Center, "but instead, it reveals the truth that justices decide for themselves if recusal is reasonable."

The justice is not required to explain his or her decision either way; there's no independent mechanism to override one. The Chief Justice does not possess any special administrative or disciplinary power over the Associate Justices. Each is an independent actor appointed for life, provided they exhibit good behavior.

All nine members of the court have defended this approach as critical to judicial independence and separation of powers.

Still, there is one disciplinary tool Congress has at its disposal with respect to justices: impeachment. So far, however, there does not appear to be a political appetite for that.

"The Committee has been conducting a thorough investigation into years of ethical lapses by some justices on the Supreme Court—and the Committee has been reviewing the latest reporting on Justice Alito as part of this ongoing investigation," Senate Judiciary Committee Chairman Sen. Dick Durbin, D-Ill., said in a statement Wednesday.

"At the end of the day, the Chief Justice can end this spiraling decline in America's confidence in our highest Court by taking decisive action to establish a credible code of conduct," he said.

Roberts, in a rare public letter responding to Durbin, showed no sign the court will change course any time soon.

"Members of the Supreme Court recently reaffirmed the practice we have followed for 235 years pursuant to which individual justices decide recusal issues." He then declined to meet with the Senator to even discuss it.

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