Opinion: 3 reasons why Alito’s flag controversy doesn’t warrant his recusal

Editor’s Note: Michael J. Broyde is a professor at Emory University School of Law and teaches legal and judicial ethics. The views expressed in this commentary are his own. Read more opinion on CNN.

Less than two weeks after rioters stormed the US Capitol on January 6, 2021, Supreme Court Justice Samuel Alito’s lawn displayed an upside-down American flag, The New York Times reported this week. The upside-down US flag had become a symbol of the “Stop the Steal” movement that didn’t respect the results of the 2020 election. When asked about it, Alito replied in an email to the Times that he “had no involvement whatsoever in the flying of the flag,” and “it was briefly placed by Mrs. Alito [his wife] in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

I don’t support flying the American flag upside-down, particularly when it evokes the cause of the rioters who stormed the US Capitol on January 6, 2021, to thwart the certification of the 2020 presidential election. It was unwise for anyone to hang such a flag at that time in their home, and that such a symbol would be found on the home of a Supreme Court justice is objectionable.

But despite holding that view, I believe the calls from Democratic leaders and others for Alito to recuse himself from the cases about the January 6 attack and the 2020 election that are pending before the court are wrong. The mistake these calls make is three-fold: neither the precedent, nor the law, nor the facts mandate recusal.

Precedent first: In 2016, the late, great Justice Ruth Bader Ginsburg in a series of interviews called then-candidate Donald Trump a “faker” and more, saying, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.” She also shared that she would consider moving to New Zealand if he won (he did, and she did not). While she eventually expressed regret for her comments, she continued to sit on numerous cases in which Trump was a named party in the Supreme Court, both as president and as a private citizen.

Obviously, Ginsburg felt that her impartiality could not be reasonably questioned, even as she told everyone Trump was a faker and cast other aspersions. While many protested her remarks, I was one of the few to call for her to even consider recusing herself from all cases involving Trump. She did not end up stepping aside from a single case in which he was named. This precedent, therefore, does not direct justices to recuse themselves even if they publicly share a view on a political matter or a politician that then comes before the court.

Secondly, the law simply does not require it. Having an opinion on either the facts or the law in matters of public interest do not disqualify a justice. After all, one suspects that in all matters of public interest, justices have opinions — and they are appointed to some extent due to their opinions.

Voicing opinions on matters of public interest is also something justices do outside the courthouse from time to time. Even if one could show that any given justice thought the election was or was not stolen, that has nothing to do with the legal questions raised in the court about the charge of obstruction against the rioters, such as whether a joint session of Congress is actually an “official act” under the statute charged.

Justices speak about the reality as they see it all the time, and it does not legally prevent them from interpreting the statutes that they consider. Think about, for example, Justice Elena Kagan’s fine lecture on textualism at Harvard Law School in 2015. Having spoken about textualism (the idea that the text of the US Constitution speaks for itself as the written word), she is surely not precluded from addressing these issues from the bench as a justice.

Different rules would risk turning justices into monks — isolated from the normal give and take of discourse. American law is clear: If a rioter were a close relative of a justice, recusal would be required — and the same is true if a justice or their family had a financial stake in the guilt or innocence of a party. But having an opinion on whether the election really was stolen does not mandate recusal and neither does sharing that opinion (although such sharing is unusual for justices and generally unwise).

Finally, and most importantly, the facts do not support recusal. Alito denies hanging the upside-down flag and connects it to a personal dispute between his wife and an unnamed neighbor. No one disputes this account, and we do not disqualify a justice, or a judge, based on the conduct or opinions of their spouse other than on financial matters.

Even if the justice’s wife had a clear opinion on the election of 2020, recusal would not be mandated. Countless judges and justices have had spouses who have been involved in advocacy and have had clear and firm opinions — such as circuit judges Stephen Reinhardt who was married to Ramona Ripston of the American Civil Liberties Union, and Nina Pillard, who is married to David D. Cole, the national legal director of the ACLU — and have not recused themselves from hearing cases where their spouse had views or, in Reinhardt’s case, even filed a brief.

In this case, Alito says his wife had a social dispute with a neighbor. Certainly, disqualification of Alito based on the dispute between Martha-Ann Alito and an unnamed neighbor is uncalled for. This is an even simpler case than that of Justice Clarence Thomas and his wife Ginni Thomas, given that she is a political player involved in national Republican politics in support of Trump. Of course, as US Sen. Lindsey Graham notes, hanging a flag upside-down in anger might be bad judgement, but it is hardly grounds for recusal, Sen. Dick Durbin’s claim to the contrary, notwithstanding.

On Wednesday, the Times reported that another flag was flown at Alito’s beach house in New Jersey last summer, the “Pine Tree Flag,” sometimes called the “Appeal to Heaven” flag, which was also carried by some rioters at the Capitol on January 6. If an upside-down flag — directly connected to the insurrectionist movement — is not grounds for recusal, this is even more so the case for this flag, since it is historically part of the American tradition. Designed by Col. Joseph Reed, who served as the personal secretary to George Washington, the flag was used by the Navy as early as 1775 and has many cultural and symbolic purposes.

Based on the law, facts and precedent, there is no reason for Alito to consider recusing himself. Furthermore, one should worry that recusal claims of this type — especially when they are being put forward by politicians who might not like how they think the justice will vote — deeply undermine the court. Recusal claims need to be neutrally applied and not something one uses against one’s opposition on the bench.

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