Opinion: 3 reasons why Alito’s flag controversy doesn’t warrant his recusal | CNN (2024)

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.

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Less than two weeks after rioters stormed the US Capitol on January 6, 2021, Supreme CourtJustice Samuel Alito’s lawndisplayed an upside-down American flag, The New York Timesreportedthis week. The upside-down US flaghad becomeasymbolof the “Stop the Steal” movementthat didn’t respect the results ofthe 2020 election. When asked about it, Alitorepliedin 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.”

Michael Broyde

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 certificationof the 2020presidential election.It was unwise for anyone to hang such a flag at that time in their home,and thatsuch a symbol would be found on the home of a Supreme Court justice is objectionable.

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

Precedentfirst: In 2016, the late,great Justice Ruth Bader Ginsburg in a series ofinterviewscalled then-candidateDonaldTrump a “faker”andmore,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.” Shealsosharedthat she would consider moving toNew Zealandif he won (he did, and she did not).Whilesheeventually expressedregretfor her comments, she continued tosit on numerous casesin which Trump was a named party in theSupreme Court,both aspresidentand as aprivate citizen.

Obviously, Ginsburg felt that her impartiality could not bereasonably questioned, even as she told everyone Trump was afakerand cast other aspersions.While manyprotested her remarks,I was one of thefewtocallfor her to even consider recusingherselffrom all cases involving Trump. She did notend upsteppingaside from a single casein whichhe was named.Thisprecedent, therefore,does not direct justices to recuse themselves even if they publicly share a view on a political matter or a politicianthat thencomesbefore the court.

Secondly, the law simply does not require it. Having anopinionon eitherthe facts or the law in matters of public interest do not disqualify ajustice.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 isalsosomething 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 obstructionagainst the rioters, such aswhether a joint session of Congress is actually an “official act” under thestatute charged.

Justices speak about the reality as they see it all the time, and it does not legallyprevent them from interpreting the statutes that they consider. Think about, for example, Justice Elena Kagan’sfine 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 ruleswouldriskturningjustices 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 berequired— 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 andgenerallyunwise).

Finally, and most importantly, the facts do not support recusal.Alito denies hanging the upside-down flagand 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 ascircuit judgesStephen Reinhardtwho wasmarriedtoRamona Ripstonof the American Civil Liberties Union, andNina Pillard, who ismarriedtoDavid D. Cole, thenational legal directorof the ACLU—andhave not recusedthemselves 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 thedispute between Martha-AnnAlito and an unnamed neighbor is uncalled for. This is an even simpler case than that ofJustice Clarence Thomasand his wife Ginni Thomas,given thatshe isa political playerinvolved in national Republican politics in support of Trump. Of course, as US Sen. Lindsey Grahamnotes, hanging a flag upside-down in anger might be bad judgement, but it is hardly grounds for recusal,Sen. Dick Durbin’sclaim to the contrary, notwithstanding.

On Wednesday, the Timesreportedthat 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 bysomerioters 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 ishistorically part of the American tradition. Designed by Col.Joseph Reed, who served as the personal secretary to George Washington,the flagwas used by the Navy as early as 1775and has many cultural and symbolic purposes.

Based on the law, facts and precedent, there is no reason forAlito to consider recusing himself.Furthermore, one should worry that recusal claims of this type — especially when they are being put forward by politicians who mightnot 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.