Democrats, in another stab at “reverse court-packing,” have demanded conservative Supreme Court Justice Samuel Alito recuse himself from two ongoing cases involving former President Donald Trump and January 6.
Unable to expand the court with more liberal justices, Democrats are casting doubt on Justice Alito’s ability to remain impartial after the New York Times published two stories showing an upside-down American flag and an Appeal to Heaven flag displayed in Alito’s front yard. The pressure campaign is the latest from left-leaning media outlets and Democrats, who have also targeted conservative Justice Clarence Thomas and similarly demanded his recusal from politically expedient cases.
“The left claims to uphold norms but violates them by inventing recusal standards to pressure and delegitimize the court. The goal is power, not ethics,” Mark Paoletta, a senior fellow at Center for Renewing America and a top lawyer for the Trump White House, wrote in a rebuttal op-ed in the Wall Street Journal published Wednesday.
The first story from the Times stirred outrage over an upside-down American flag displayed outside of Alito’s Virginia home in January of 2021 — historically, the American flag is flown upside-down to show a signal of “dire distress in instances of extreme danger to life or property,” according to U.S. flag code.
Some supporters of Trump have also used the inverted flag to express their view that the 2020 election was stolen. But the Times notably pointed out that left-wing activists have displayed upside-down flags for their own political purposes, including protesting gun violence, following the 2022 Dobbs decision, which overturned the invented federal right to abortion, and the election of Donald Trump.
Justice Alito told the publication that his wife, Martha Ann, flew the flag during a spat with a neighbor who used obscenities on a political sign.
“I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to the Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
Even so, the Times linked an upside-down flag photographed in Alito’s yard on January 17, 2021, to Trump supporters, “including some brandishing the same symbol,” who had “rioted at the Capitol a little over a week before.” The publication also quoted a law professor who asserted that the upside-down flag is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases.”
The second Times story hit out at Alito for flying an Appeal to Heaven flag, which dates back to the Revolutionary War and is “meant to signify a plea to a higher power for help saving early American colonies from the rule of the King of England,” Forbes noted. Photographs obtained by the Times allegedly showed the flag aloft at Alito’s Long Beach Island home in July and September of 2023, although it is unclear if the flag was displayed continuously during that time or how long it was flown for. Alito has not commented on the second flag.
The Times wrote about how some people who protested on January 6 carried the Appeal to Heaven flag, and how the flag has also more recently been associated with a push to make the United States government more Christian-minded.
“During the period the Appeal to Heaven flag was seen flying at the justice’s New Jersey house, a key Jan. 6 case arrived at the Supreme Court, challenging whether those who stormed the Capitol could be prosecuted for obstruction,” the Times wrote.
In his WSJ op-ed, Paoletta outlined several instances of liberal-leaning justices in the past who have declined to recuse themselves from cases, despite the appearance of conflicting interests.
He wrote:
Judge Stephen Reinhardt of the Ninth U.S. Circuit Court of Appeals didn’t recuse himself from a 2011 case challenging California’s same-sex marriage ban, even though his wife directed an American Civil Liberties Union chapter that had joined two district-court briefs in the case. “The views are hers, not mine, and I do not in any way condition my opinions on the positions she takes regarding any issues,” Reinhardt wrote. Judicial ethics experts led by Stephen Gillers filed a brief defending Reinhardt on grounds that his wife’s “opinions, views, and public pronouncements of support for the district court decision below do not trigger any reasonable basis to question Judge Reinhardt’s ability to honor his oath of office.”
Justice Ruth Bader Ginsburg—herself, not her late husband—was outspokenly anti-Trump in 2016. She called the Republican candidate a “faker” and criticized him for not releasing his tax returns. She didn’t recuse herself from any case involving Mr. Trump, including Trump v. Mazars (2020), which concerned a congressional subpoena for his tax returns. And in 1998 she donated a signed copy of one of her opinions to the National Organization for Women, which sold it in a fundraising auction. Ginsburg didn’t recuse herself from any case in which NOW filed a brief.
Judge Nina Pillard of the D.C. Circuit didn’t recuse herself from the Mazars case either. Her husband is the ACLU’s national legal director and had written a blog post agreeing with the district court’s decision before the full appellate court that included his wife reviewed it.
Paoletta ultimately called the left’s campaign against the Supreme Court “comical,” and said Alito is under no obligation to recuse himself from any cases.
“The law requires recusal if a family member is involved in a case as a litigant, witness or lawyer or has an interest that will be substantially affected by the decision. None of that applies here,” he explained. “The law also provides that a judge shall recuse if his ‘impartiality might reasonably be questioned.’ Do Mrs. Alito’s political views, whatever they may be, create a reasonable question about Justice Alito’s impartiality? Not if we follow precedent.”
