The Volokh Conspiracy

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Justice Alito's Letter About The Flag Flap

He will not recuse, so everyone should move on.


Justice Alito wrote a letter to Senators Durbin and Whitehouse in response to their calls for recusal. He was under no obligation to respond, and I have no doubt that his response will not placate critics. But his letter makes several important points, and also provides insights into his thinking about the flag flap.

First, the Supreme Court's Code of Conduct provides that a Justice should recuse "where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties." What does "unbiased and reasonable mean"? Justice Alito provides his own gloss on that phrase.  Here, Justice Alito was "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 events recounted above do not meet the applicable standard for recusal." In Alito's view, "unbiased and reasonable" does not include a person who is "motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases." The people who are calling for Justice Alito to recuse fall squarely in this category. The primary driver behind the "Stop the Steal" narrative is to force Justice Alito to recuse in all Trump-related cases. These voices were silent about Justice Ginsburg's comments about President Trump, and her dissent collar after election day. (Apologies do not undo an appearance of partiality). These voices, Alito implies, are not "unbiased and reasonable."

Second, Justice Alito and Mrs. Alito had no idea that either flag was associated with the "Stop the Steal" movement.

My wife's reasons for flying the flag are not relevant for present purposes, but I note that she was greatly distressed at the time due, in large part, to a very nasty neighborhood dispute in which I had no involvement.

I was not familiar with the "Appeal to Heaven" flag when my wife flew it. She may have mentioned that it dates back to the American Revolution, and I assumed she was flying it to express a religious and patriotic message. I was not aware of any connection between this historic flag and the "Stop the Steal Movement," and neither was my wife. She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.

I don't care how many tweets Jodi Kantor finds, this narrative–the core of the entire story–will never stick.

Third, Justice Alito explains that his wife retains the full panoply of free speech rights:

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. . . .

As I said in reference to the other flag event, my wife is an independently minded private citizen. She makes her own decisions, and I honor her right to do so.

The mere fact that Mrs. Alito says something does not impute any improper motivations to her husband. Thankfully, coverture has been abolished, and spouses are allowed to have their own legal identities.

Fourth, we learn that Justice Alito had nothing to do with either flag. Indeed, Justice Alito asked Mrs. Alito to take down the upside-down flag, and she refused:

As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upsidedown 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.

I'm sure some readers would respond, "You could divorce your wife." Indeed, Nancy Gartner, a former federal judge, said as much to the Washington Post.

If her husband had tried to put up a sign or flag at their house in response to something a neighbor displayed on their block that was inconsistent with or critical of his civil liberties work, Gertner added: "One of two things would have happened: A) a divorce and B) surely recusal."

I think this statement says far more of how Gertner views the institution of marriage than how she views the code of ethics. Mrs. Alito's neighborly spat with her neighbors was her own business. Justice Alito asked her to taken down the flags. She refused. Even if Mrs. Alito was trying to convey some sort of political message about the election, Justice Alito distanced himself from it. Knowing these facts now, a reasonable person should see no justification for recusal–of course, they may insist that Justice Alito is lying, and that he personally was aware of the symbol's meaning and endorsed it. But these views are not reasonable, and not unbiased.

Fifth, Justice Alito spoke to the sacrifices that his wife has had to make.

She has made many sacrifices to accommodate my service on the Supreme Court, including the insult of having to endure numerous, loud, obscene, and personally insulting protests in front of our home that continue to this day and now threaten to escalate.

The protests will continue. These Justices and their families cannot know peace and quiet. Indeed, their refuge on the Jersey Shore has also been ruined.

Our vacation home was purchased with money she inherited from her parents and is titled in her name. It is a place, away from Washington, where she should be able to relax.

Regrettably, the spouses of all conservative Justices have to make these sacrifices. I can't fathom why anyone would want to accept this job–why put your family through this hell. And to be clear, spouses of liberal Justices will be toasted on the town. Patrick Jackson has nothing to worry about. There were never any call for RBG's recusal based on Marty Ginsburg's practice at Fried Frank, which appeared before the Supreme Court.

Justice Alito will not recuse, so everyone should move on. But they won't.