First, it was Mrs. Alito’s day-long display of an upside-down American flag that Democrats claimed required Justice Samuel Alito to recuse himself from Supreme Court cases involving Jan. 6 defendants and Trump’s appeal concerning presidential immunity. Less than a week later, Democrats seized on the news that an Appeal to Heaven flag was hung outside the Alitos’ beach house. According to the biased media echoing their Democrat allies, this clearly meant the conservative justice must recuse himself from these high-profile cases.
On the contrary, there is absolutely no basis for Justice Alito to recuse himself. The only thing that’s clear is how desperate and absurd the efforts to target the Supreme Court justice have become.
As I explained last week, based on my extensive research into the federal codes of conduct, Mrs. Alito’s flying of an upside-down American flag raised no ethical issues for Justice Alito. The Code of Conduct for Justices, which applies to federal judges and judicial employees, does not govern spouses. A judge’s only obligation is to disassociate himself or herself from their spouse’s political activities, which Justice Alito did by making it clear he had nothing to do with the flag.
Whether Justice or Mrs. Alito flew the Appeal to Heaven flag is unknown but also irrelevant. Despite the concerted effort by politicians and the press to portray the flag as a symbol of “Stop the Steal” or Jan. 6, 2021, there is nothing inherently political about displaying the Appeal to Heaven flag. The only intrinsic message conveyed by the display of this flag, also known as the Pine Tree Flag, is “a patriotic message of democratic resilience.” This flag dates back to revolutionary times when the first six schooners commissioned by the Continental Congress to intercept British ships in 1775 flew the flag on the order of George Washington’s secretary.
While some Jan. 6 protesters displayed the Pine Tree Flag, just as some Black Lives Matter protesters displayed various symbols during their protests, there is no reasonable basis to suggest that displaying an Appeal to Heaven flag represents support for any specific message, much less one directly connected to the Jan. 6 protesters or Trump.
The key word 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 who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” No reasonable person would doubt Justice Alito’s ability to fairly discharge his duties in ruling on the cases at issue because of the flying of the Pine Tree Flag at his beach house. Given the historic origins and patriotic purpose of the Appeal to Heaven flag, an argument of bias assumes the banner meant something else specifically connected to Jan. 6 or Trump. The Supreme Court’s ethical rules, specifically Canon 3B(1), state that a justice “is presumed impartial.” Thus, there is no valid case for recusal.
Democrats recognize this, just as they know their baseless media blitz will not prompt Alito’s recusal. Unlike politicians who might capitulate when faced with false narratives to avoid a firestorm of bad press, that strategy fails against the lifetime appointees of the Supreme Court. This is precisely why our founders enshrined such protections in Article III of the Constitution.
The contrived attacks on Justice Alito serve only one purpose: to delegitimize the Supreme Court and its forthcoming opinions. For Democrats, questioning the integrity of our government is no longer a threat to democracy, but flying a Revolutionary War-era flag is. This double standard reveals their true agenda: undermining the judiciary to achieve political ends.
