Justice Alito wrote a letter to Senators Durbin and Whitehouse responding to their calls to recuse themselves. He is under no obligation to respond, and I have no doubt that his response will not appease his critics. But his letter makes several important points and provides insight into his thinking about flag waving.
firstthe Supreme Court’s code of conduct states that a judge should recuse himself “if fair and reasonable Anyone who knows all the relevant circumstances would doubt whether a judge can discharge his or her duties fairly. A reasonable person who is not motivated by political or ideological considerations or who wishes to influence the outcome of a Supreme Court case It will be concluded that the incidents described above do not meet the applicable avoidance standards. People who ask the justice to recuse themselves fall into this category. , Ginsburg’s comments about President Trump and her dissent collar (an apology doesn’t eliminate bias).
secondJudge Alito and Mrs. Alito were unaware that the flag was associated with the Stop the Steal movement.
My wife’s reasons for flying the flag are irrelevant for present purposes, but I noticed that she was in a lot of distress at the time, due in large part to a very nasty neighborhood dispute in which I had no involvement.
…
When my wife flew the “Pray to Heaven” flag, I was unfamiliar with it. She may have mentioned that it dates back to the American Revolution, and I assume she drove it to express a religious and patriotic message. I had no idea there was any connection between this historic flag and the Stop the Steal movement, and neither did my wife. She was not flying the flag to associate herself with that group or any other group, and the use of an old historical flag by a new group does not necessarily strip the flag of all other meanings.
I don’t care how many tweets Jodi Kanter uncovers, this narrative — the core of the entire story — will never stick.
thirdJustice Alito explained that his wife retained full free speech rights:
My wife is a private citizen and has the same First Amendment rights as any other American. She makes her own decisions and I have always respected her right to do so. . . .
As I said in reference to other flag incidents, my wife is a private, independent-minded citizen. She makes her own decisions and I respect her right to do so.
What Mrs. Alito said did not in itself suggest that her husband had any improper motives. Thankfully, hidden status has been abolished and spouses can have their own legal status.
fourthwe learn that Justice Alito and anyone banner. In fact, Judge Alito asked Mrs. Alito to remove the upside-down flag, but she refused:
As I have stated publicly, I had nothing to do with the flying of that flag. I wasn’t even aware of the inverted flag until someone brought it to my attention. As soon as I saw it I asked my wife to take it off, but she refused for days.
I’m sure some readers will respond: “You can divorce your wife.” In fact, former federal judge Nancy Gartner told the Washington Post the same thing.
If her husband tried to put up a sign or flag on their property 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 will happen: ) divorce, B) affirmative avoidance.”
I think this quote says more about how Gertner views the institution of marriage than how she views moral principles. Mrs. Alito’s altercation with her neighbor was her own business. Judge Alito asked her to take down the flag. She refused. Even as Mrs. Alito attempted to convey some political message about the election, Justice Alito distanced herself. Now knowing these facts, a reasonable person should see no reason to recuse—although, of course, they might insist that Judge Alito was lying and that he personally knew the symbol’s meaning and endorsed it. But these views are unreasonable and unfair.
fifthJustice Alito spoke of the sacrifices his wife had to make.
She made many sacrifices to accommodate my service on the Supreme Court, including having to endure numerous loud, obscene, and personally insulting protests in front of our home that continue to this day and now have escalated Danger.
Protests will also continue. These judges and their families are denied peace and tranquility. In fact, their sanctuary at the Jersey Shore was destroyed.
Our vacation home was purchased with money she inherited from her parents and was named after her. It was a place away from Washington, where she should be able to relax.
Unfortunately, all spouses of conservative justices must make these sacrifices. I can’t understand why anyone would take this job – why put your family through such hell. To be clear, the spouses of liberal judges will be toasted around town. Patrick Jackson has nothing to worry about. Following Marty Ginsburg’s approach in Fried Frank, the Supreme Court never required RBG to recuse herself.
Judge Alito will not recuse himself, so everyone should move on. But they won’t.
