Samuel Alito has refused to recuse himself from upcoming cases relating to the January 6 Capitol riot. The Supreme Court associate justice told Congress earlier this week that Democrats' insistence that he does so was unreasonable, saying, "I am therefore duty bound to reject your recusal request."
Why have so many Democratic politicians and media figures decided that Alito should sit out from January 6 cases? They believe that he has proven himself to be sympathetic to former President Donald Trump's efforts to overturn the results of the 2020 election—and they cite as evidence two flags that were flown on Alito's properties.
One was an upside-down American flag, and the other was a Pine Tree flag bearing the message "an appeal to heaven." Many in the media have abruptly decided that both flags telegraph agreement with the right's pro-insurrection camp. CNN called the "Appeal to Heaven" flag a "symbol for supporters of former President Donald Trump." The New York Times noted that both flags were carried by rioters during the January 6 attack on the U.S. Capitol. MSNBC insisted that the Pine Tree flag was not just a pro-insurrection flag but also a Christian nationalist flag and implied that Alito should recuse himself from abortion-related cases as well.
Yet the idea that either the Pine Tree flag or flying the American flag upside-down always and everywhere endorsements of Trump's election-related malfeasance is ludicrous. The American flag is commonly turned upside-down by activists representing all sorts of issues and usually represents dissatisfaction with the current state of the country. The "Appeal to Heaven" flag has equally broad usage; it originated during the Revolutionary War and quotes the philosopher John Locke in defense of rebellion against unjust authority. Protesters have borrowed it for their own purposes throughout American history. The Black Lives Matter movement was using it just a few weeks before January 6.
It is certainly true that some of the people who smashed the windows of the U.S. Capitol and feuded with police were carrying this flag, the Gadsden flag, and other icons of liberty—including the American flag itself. That does not mean these flags should be considered exclusive hallmarks of the far right. In fact, people ought to resist ceding pro-liberty iconography to the far right.
Alito says that he had nothing to do with the flags, which were put up by his wife during a dispute with one of their neighbors. It is certainly possible that Martha-Ann Alito is a supporter of the Stop the Steal movement. (Associate Supreme Court Justice Clarence Thomas's wife, Ginni Thomas, was certainly sympathetic.) The flags are not compelling evidence of this, however; nor would it necessarily mean that Alito should recuse himself from such cases. Would a liberal justice be expected to recuse from a case related to gay marriage if they flew the pride flag? Or a criminal justice–related case if they had a Black Lives Matter sign on their front yard? No.
For decades, San Francisco's city hall has flown the "Appeal to Heaven" flag alongside other cherished, patriotic banners. In response to the Alito controversy, the city announced this week that it had removed the flag. This is madness. It's retconning. That picture of a pine tree is not a right-wing symbol of hate; cowards are turning it into one.
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