U.S. Supreme Court Justice Samuel Alito, justifying his decision not to recuse himself from two cases relating to the January 6 attack on the Capitol, has claimed that he was "not even aware" of an upside-down American flag that he said was flown by his wife in response to a neighborly dispute rather than as a political statement in support of pro-Trump insurrectionists. But The New York Times reported Thursday that, while legal experts welcomed Alito's willingness to explain himself, they were not persuaded by his alibi.
"I agree that Justice Alito's wife has a First Amendment right to express her views," said Amanda Frost, a law professor of the University of Virginia. "But if she does so on their shared property, in a way that would lead a reasonable person to question his impartiality, then he should respond by recusing himself."
If Alito's version of events makes his non-recusal suspect even at face value, a different story told by his neighbors and corroborated by local police further tarnishes his explanation by confirming that the incident that Alito claims provoked his wife occurred a month after the flag was raised and then taken down. And Alito has also been questioned about the flags flying on his other property on New Jersey's beachfront, which includes an "Appeal to Heaven" banner used by right-wing Christian nationalists.
On Wednesday, Alito sent a letter to Democratic lawmakers claiming that his wife "is fond of flying flags," while he was not. "She was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years," he maintained.
James Sample, a law professor at Hofstra University, suggested that even if explanations by justices are a positive development when they are "thorough," Alito's submission did not meet that standard. "Explanation is unwelcome if it’s hyper-selective and borderline dishonest," he told the Times.
This is not the first time Alito has had to explain his alleged conflicts of interest. Last year, he opined in the Wall Street Journal that he was not required to disclose a free trip on the private jet of a billionaire whose cases frequently appeared before the Supreme Court, arguing that he had occupied a seat on the plane that, "as far as I am aware, would have otherwise been vacant.”
