US Supreme Court justice refuses to recuse himself after flag controversy

US Supreme Court Justice Samuel Alito has refused to step away from cases involving Donald Trump and the 2021 attack on the US Capitol after reports of controversial flags flown at his properties had spurred calls for his recusal.

In a letter to US senators who had called for his withdrawal, Alito on Wednesday said the incidents did “not meet the conditions for recusal” and that he was “duty-bound to reject” their request.

The contention stems from recent media reports showing an upside-down American flag flying at Alito’s home in Virginia days after Trump supporters stormed the US Capitol on January 6 2021 in a bid to stop the certification of Joe Biden’s election victory. The upside-down flag was a symbol used by Trump supporters who claimed the 2020 presidential election had been stolen.

Later there were reports of a second flag raised at Alito’s holiday home in 2023 that read “An Appeal to Heaven” — an American Revolution-era design that had been displayed by participants in the January 6 attack, and which has also been associated with a push for Christianity to reshape the US government.

After the reports, Democratic senators Dick Durbin and Sheldon Whitehouse called for Alito’s recusal from any case associated with the 2020 general election, the Capitol attack and Trump’s presidential immunity claim.

In response, Alito placed the responsibility squarely with his wife, Martha-Ann Alito. “My wife is fond of flying flags,” he said. “I am not.” He said he had no involvement in the choice to raise both flags.

Alito said he had not been aware of the upside-down flag and asked his wife “to take it down” as soon as he saw it. For “several days, she refused,” he said.

He stopped short of explaining his wife’s intentions, arguing they were “not relevant for present purposes”. But he claimed she “was greatly distressed at the time” due to a “very nasty neighbourhood dispute”.

Alito added: “My wife is a private citizen, and she possesses the same First Amendment rights as every other American.”

He also claimed he assumed his wife flew the “Appeal to Heaven” flag to “express a religious and patriotic message”. The couple was not aware of its connections to the “Stop the Steal Movement”, Alito added.

The controversy comes as the Supreme Court is weighing an appeal by Trump, who has claimed presidential immunity from criminal charges in a federal case accusing him of seeking to overturn the 2020 election. The court’s decision could shape the presidential office for years to come. It is expected to be issued before its term concludes, typically in late June.

In another case, the Supreme Court is set to decide whether people charged in the January 6 riots can face counts of obstructing official proceedings.

The controversy over the flags is the latest ethical question to confront the high court, following reports of undisclosed ties between wealthy businessmen and justices Alito and Clarence Thomas. Both of the justices, who are members of the court’s conservative wing, have denied any impropriety.

In a social media post, Trump on Wednesday praised Alito “for showing the INTELLIGENCE, COURAGE, and “GUTS” to refuse stepping aside”.