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By Sean O'Driscoll
Senior Crime and Courts Reporter
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Legal experts are weighing in on both sides over a "stop the steal" flag allegedly flown beside the house of Supreme Court justice Samuel Alito in the days before Joe Biden's 2021 inauguration.
As a result, some commentators have called on Alito to recuse himself from Donald Trump's criminal immunity case, which is currently being considered by the Supreme Court. The case will decide whether Trump will have to face criminal trial for allegedly trying to interfere with the result of the 2020 presidential election.
Alito, who was nominated by Republican president, George W. Bush, said that his wife had flown the upside-down U.S. flag in response to "personally insulting" political signs hung by a neighbor near Alito's home in Alexandria, Virginia.
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The upside-down American flag, a nautical distress signal, was used by Trump supporters to symbolize their false claim that Biden had stolen the 2020 presidential election. The flag at the Alito home was seen flying 11 days after Trump supporters invaded the Capitol on January 6, 2021 in an effort to stop Congress from certifying Biden's win.
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Newsweek sought email comment from Alito and from Supreme Court chief justice, John Roberts, on Friday.
The New York Times published a front-page story about the flag on Thursday. The article included a statement from Alito in which he said: "I had no involvement whatsoever in the flying of the flag. It was briefly placed by Mrs. Alito in response to a neighbor's use of objectionable and personally insulting language on yard signs."
New York University law professor, Stephen Gillers, told Newsweek that he largely believed Alito's version of events and said it was unlikely he would have displayed such an overt political symbol.
"I don't believe Alito knew the flag was flying upside-down or if he did know, I find it hard to believe that he knew the relationship to 'stop the steal.' I don't believe he would have allowed this to happen otherwise," Gillers said.
He said the controversy is "obviously so damaging to the court, whose reputation is already suffering."
There have already been congressional hearings to investigate allegations that Justice Clarence Thomas took lavish gifts from conservative businesspeople.
"While Alito's explanation for how it did happen is hard to believe, it is more credible than the view that he knowingly chose to fly the flag-upside down knowing its import," Gillers said.
"I think that putting the [New York Times] story above the fold on page one gives it more prominence than it deserves."
Former federal prosecutor, Neama Rahmani, told Newsweek that the controversy looks very bad but isn't necessarily Alito's fault.
"It's a terrible look, but it won't amount to anything. Judges, including Supreme Court Justices, have to recuse themselves when their objectivity may reasonably be questioned. This recusal is personal, unlike a financial benefit, which can be attributed to family members," Rahmani said.
He said that Clarence Thomas's wife, Ginni, and the daughter of Juan Merchan, the judge overseeing Trump's ongoing hush money trial, have been involved in political campaigns.
"Justice Alito has reportedly blamed his wife for the upside-down flag. If true, then the bias can't necessarily be attributed to Alito. This is the same reason Ginni Thomas' activity doesn't disqualify Justice Clarence Thomas or Judge Juan Merchan's daughter's activity doesn't disqualify Judge Merchan."
"And ultimately there is no one who can review Justice Alito's decision not to recuse himself in cases involving Donald Trump or Joe Biden," said Rahmani, who is now the president of the West Coast Trial Lawyers law firm in Los Angeles.
But Joyce Vance, a former federal prosecutor, wrote on her Civil Discourse legal blog on Friday that Alito should recuse himself from Trump cases.
Vance, a frequent critic of Trump, wrote that Alito's claim of innocence is difficult to believe.
She wrote that we now know the allegation is true "because Justice Alito blamed his wife when asked."
"As though a sitting Supreme Court Justice, upon pulling up to his home and seeing the flag, wouldn't immediately take it down and say: 'Honey, I understand your feelings, but as a Justice on the United States Supreme Court, I must avoid even the appearance of impropriety, and that flag conveys a political sentiment that is an affront to the rule of law I'm sworn to uphold, especially after rioters carrying it swarmed the Capitol a week and a half ago,'" Vance wrote.
Robert Reich, the former labor secretary in the Clinton Administration suggested that Alito should recuse himself from the Trump immunity case and from January 6 cases.
"The Supreme Court's new Code of Conduct urges recusal to avoid the *appearance* of impropriety. So Alito will recuse from Trump's immunity case or any other case related to Jan 6, right?" he asked on X, formerly Twitter, on Thursday.
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