Alito’s opinion in a 2022 Christian flag case lies in face of his recusal refusal

30 May 2024

Even before his insurrectionist flags scandal, Justice Samuel Alito was already facing ethics questions over his refusal to recuse in other cases, his association with a billionaire businessman, and his non-disclosure of luxury travel gifts. After weeks of damning reports about flags associated with the January 6, 2021 insurrection and the “Stop the Steal” conspiracy flying over not one but two of his homes, the Bush 43-appointed jurist in an indignant letter to Senate Democrats on Wednesday again refused to recuse, this time from any cases involving the attack on the nation’s capitol, or from cases involving the instigator of those assaults on the seat of government and American democracy itself, Donald Trump.

Justice Alito’s defense in his letter boils down to this sentence: “My wife is fond of flying flags.”

In his letter, Alito wrote for the first insurrectionist flag, an inverted American flag carried by some of the criminals who attacked the U.S. Capitol on January 6, flown over the Alito’s Virginia home just days later, he was not just unaware, he suggested he was legally unable to take it down because he co-owns the house with his wife, and she flew the flag.

On the second insurrectionist flag, the “Appeal to Heaven” flag, associated not only with the insurrection but with Christian nationalists and dominionists, the Supreme Court justice also defers to his spouse, because the New Jersey house it was flying over, he wrote, was purchased with his wife’s inheritance.

Alito does not end his defense there.

After explaining some of the reasons his wife, Martha-Ann Alito, chose to fly the flags, he continues his defense, writing: “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 events recounted above do not meet the applicable standard for recusal.”

On Thursday, journalist Chris Geidner, who writes about legal issues, declared, “Sam Alito believes you — and, perhaps, his colleagues — are stupid.”

“Alito lashed out in defiance,” Geidner wrote, detailing nine “demeaning quotes” from Alito’s letter.

But there’s another issue at play.

Justice Alito’s own opinion from a 2022 Supreme Court case, resurfaced Wednesday night by a social media user (below).

In 2019, as NCRM reported, Liberty Counsel, which appears on the Southern Poverty Law Center’s list of anti-LGBTQ hate groups, sued the City of Boston on behalf of its client to allow a different Christian flag to be flown at City Hall. Its client was Hal Shurtleff, the director and co-founder of Camp Constitution, a group that claims its mission is to “enhance understanding of our Judeo-Christian moral heritage,” and “the genius of our United States Constitution.”

It also says its mission is to “expose some of the abuses and perversions that have brought our nation and economy so far down.”

The case made it to the Supreme Court, and in 2022, Shurtleff won. In his concurring opinion, Justice Alito had a different take on what a reasonable person would think when seeing a flag being flown.

“As the Court rightly notes, ‘[a] passerby on Cambridge Street’ confronted with a flag flanked by government flags standing just outside the entrance of Boston’s seat of government would likely conclude that all of those flags ‘conve[y] some message on the government’s behalf.’ ”

He also noted, “The government can always disavow any messages that might be mistakenly attributed to it.”

According to Alito’s letter, no “reasonable person” who saw those two flags flying at his two homes would associate them, and the Alitos, with the insurrection, or Christian dominionism, and thus here is no need for his recusal.

In his 2022 opinion, a “passerby” would conclude the owner of the flagpole was conveying a message, but the flagpole owner could “disavow” those messages.

As Geidner notes, “Alito believes you — and, perhaps, his colleagues — are stupid.”

Clearly, many Americans, and certainly top Democrats including the chair of the Senate Judiciary Committee, Dick Durbin, and Senator Sheldon Whitehouse, a top advocate of court reform, have equated the flying of those flags to indicate Alito’s support for the insurrection, or at least the appearance of it.

“By displaying the upside-down and ‘Appeal to Heaven’ flags outside his homes, Justice Alito actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promotes public confidence in the impartiality of the judiciary,” Durbin and Whitehouse wrote. “He also created reasonable doubt about his impartiality and his ability to fairly discharge his duties in cases related to the 2020 presidential election and January 6th attack on the Capitol. His recusal in these matters is both necessary and required.”

A social media user dug up and posted the Alito opinion in the 2022 Christian flag case, eliciting this comment from professor of law and former U.S. Attorney, MSNBC’s Joyce Vance:

See the social media post above or at this link.

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