Initially, it was Mrs. Alito’s display of an upside-down American flag that prompted Democrats to demand Justice Samuel Alito recuse himself from Supreme Court cases relating to Jan. 6 defendants and Trump’s appeal on presidential immunity. Shortly after, Democrats criticized the presence of an Appeal to Heaven flag at the Alitos’ beach residence. The media, echoing their Democrat allies, insisted the conservative justice should now recuse from these high-profile cases.
Contrarily, there is no legitimate basis for Justice Alito to step down. What is apparent is the absurdity of the attempts to target him.
As I elaborated last week, based on my extensive research into federal conduct codes, Mrs. Alito’s action of flying an upside-down American flag posed no ethical dilemma for Justice Alito. The Code of Conduct for Justices, similar to the conduct codes for federal judges and employees, does not extend to spouses. The judge’s sole responsibility is to separate from a spouse’s political activities, which Alito did by clarifying he was uninvolved with the flag.
Whether Justice or Mrs. Alito hoisted the Appeal to Heaven flag is unknown — but also irrelevant.
Despite efforts by politicians and media to link the flag to “Stop the Steal” or Jan. 6, 2021, the Appeal to Heaven flag inherently carries no political message. Historically known as the Pine Tree Flag, it signifies “a patriotic message of democratic resilience.” This flag dates back to the Revolutionary War when the first six schooners commissioned by the Continental Congress flew it upon orders from George Washington’s secretary in 1775.
While some Jan. 6 protesters—as well as some Black Lives Matter protesters during earlier Washington, D.C. events—displayed the Pine Tree Flag, there is no reasonable basis to argue that its display signifies support for a specific message related to the Jan. 6 cases or Trump’s immunity appeal.
The key term here is reasonable. Canon 3B(2) of the Supreme Court’s Code of Conduct states that “[a] Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”
No reasonable person would question Justice Alito’s ability to remain impartial due to the Pine Tree Flag flying at his beach house. Given the historic significance and patriotic meaning of the Appeal to Heaven flag, alleging bias necessitates unfounded assumptions that the flag represented a specific connection to Jan. 6 protesters or Trump. Ethical guidelines, particularly Canon 3B(1), presume a justice’s impartiality. Thus, there is no valid case for recusal.
Democrats understand this and are aware their media campaign will not force Alito’s recusal. Unlike politicians who might capitulate to avoid negative press, this strategy fails with Supreme Court justices, safeguarded by lifetime appointments as per Article III of the Constitution.
These orchestrated attacks on Justice Alito aim solely to undermine the Supreme Court and its upcoming rulings. For Democrats, challenging government integrity seems acceptable — but exhibiting a Revolutionary War-era flag is not.
