First, it was Mrs. Alito’s day-long flying of an upside-down American flag that Democrats claimed required Justice Samuel Alito to recuse himself from pending Supreme Court cases involving Jan. 6 defendants and Trump’s appeal concerning presidential immunity. Less than a week later, Democrats pounced on the news that an Appeal to Heaven flag hung outside the Alitos’ beach house. Predictably, the liberal media echoed their demands for Alito’s recusal.
However, there is no legitimate basis for Justice Alito to recuse himself. The attempts to target the Supreme Court justice have reached absurd levels.
As I explained last week, based on extensive research into the federal codes of conduct, Mrs. Alito’s flying of an upside-down American flag posed 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 from their spouse’s political activities, which Justice Alito did by clarifying he had nothing to do with the flag.
It is currently unknown whether Justice or Mrs. Alito flew the Appeal to Heaven flag — but that detail is irrelevant. Despite efforts 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 flag, also known as the Pine Tree Flag, dates back to the American Revolution, symbolizing “a patriotic message of democratic resilience.” It was first flown by Continental Congress-commissioned schooners intercepting British ships in 1775 under George Washington’s orders.
While some Jan. 6 protesters — like some Black Lives Matter protesters before them — displayed the Pine Tree Flag, there is no reasonable basis to suggest that flying the Appeal to Heaven flag represents support for a specific political message, much less one connected to the Jan. 6 protests or Trump.
Canon 3B(2) of the Supreme Court’s Code of Conduct states, “[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 rule fairly on the cases in question because of the Pine Tree Flag at his beach house. Given the flag’s historic origins and its patriotic significance, any argument of bias presumes the flag meant something specific to Jan. 6 or Trump. But Canon 3B(1) provides that a justice “is presumed impartial.” Thus, there is no reasonable case for recusal.
Democrats recognize this, just as they know their media campaign will not prompt Alito’s recusal. Unlike politicians who may cave to false narratives to avoid bad press, this strategy fails against Supreme Court justices with lifetime appointments — a protection enshrined by the founders in Article III of the Constitution.
These contrived attacks on Justice Alito serve 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.
