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Sam Alito just wrote a letter to Senators Dick Durbin and Sheldon Whitehouse to inform them that, despite hoisting a “Stop the Steal” symbol over his house in the aftermath of January 6, he sees no reason to recuse himself from the pending case to declare Donald Trump’s objectively false “Stop the Steal” claims grant him absolute immunity from prosecution.
Alito begins by noting that recusal is necessary when “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,” before announcing that “an unbiased and reasonable person” requires “having fallen off a turnip truck yesterday.”
The letter reiterates his flagging claim that his wife and only his wife is responsible for flying the flag upside down and that she intended it as a “sign of distress” despite the ubiquity of the flag at that specific moment in time as an emblem of support for the insurrection. As excuses go, this is a lot like trying to spin flying a swastika in 2024 as just an ancient Hindu symbol, but it’s all he’s got.
And while it’s all nigh impossible to believe, he bolsters this claim by really leaning into the “distress” his wife suffered.
My wife’s reasons for flying the flag are not relevant for present purposes, but I note that she was greatly distressed at the time due, in large part, to a very nasty neighborhood dispute in which I had no involvement. A house on the street displayed a sign attacking her personally, and a man who was living in the house at the time trailed her all the way down the street and berated her in my presence using foul language, including what I regard as the vilest epithet that can be addressed to a woman.
The justice noted to Fox News that this incident led to police intervention. Unfortunately, his narrative was foiled by basic research and linear time:
The basis of this “distress” excuse took place weeks later? If only Alito took a second to check the Times before committing to this falsehood in a letter to the Senate. Oh well!
Alas, this isn’t the first time Alito got himself tripped up by an easily checked lie. When ProPublica revealed that Alito took a private jet trip to an all-expense paid luxury resort provided by wealthy conservatives with business before the Court, he wrote to the Wall Street Journal that he barely knew Paul Singer, the man who put him on his private plane.
Except, Above the Law had reported on Alito and Singer hanging out at Federalist Society events years earlier:
Justice Alito was introduced by Paul Singer, the founder of the Elliott Associates hedge fund…. Singer, a personal friend of Justice Alito, gave the typically generous introduction….
Apparently he’d forgotten that reporters go to FedSoc events and, you know, write about them.
I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal. I am therefore required to reject your request.
Here he exhibits willful blindness to what “motivated by political or ideological considerations” means. Liberal critics obviously see the worst in the flag story… but conservative apologists are just as motivated by political and ideological considerations. When ideological fellow travelers are trying desperately to invent more credible excuses because they understand the justice’s ACTUAL attempts to explain himself are failing, it’s a conflict dominated by political or ideological considerations warranting recusal.
Justice Ginsburg called Donald Trump “phony” and would absolutely have needed to recuse herself if it turned into a Bush v. Gore situation. And that falls several rungs below “displaying a known sign of insurrectionist sympathies.”
In distancing himself from the Appeal to Heaven flag — a banner that faded into obscurity until Christian nationalists made it their symbol — Alito, a former Army officer in the Signal Corps, explains that he doesn’t actually much care for flags:
My wife is fond of flying flags. I am not.
What’s vexing about his claim that she’s just an avid vexillologist, is it runs headlong into his insistence that she has no political motivation for flying any of these flags. She’s totally obsessed with flags… also she has no idea what they mean and just kind of flies things she finds pretty doesn’t really resonate.
As I said in reference to the other flag event, my wife is an independently minded private citizen. She makes her own decisions, and I honor her right to do so.
Sam Alito… noted feminist.
But, seriously, if the excuse is that she doesn’t do any of this for political reasons, then why does that matter? You don’t need to defend her First Amendment right to political speech if you don’t think it’s political speech. There’s no advantage to arguing in the alternative! Pick a story and stick with it!
It’s just such lazy dissembling. Maybe life tenure just invites complacency in everything.
(Full letter on the next page.)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
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