Samuel Alito's story about the upside-down flag fiasco isn't fully adding up

• Justice Samuel Alito is rejecting calls for his recusal from January 6-related cases.

• Alito blamed his wife for flying two controversial flags that have ties to right-wing movements.

• But Alito's explanation for why and when his wife flew one of the flags isn't adding up.

Supreme Court Justice Samuel Alito is doubling down on blaming his wife for flying two flags that are associated with right-wing groups and ideas over the couple's homes in recent years.

In a Wednesday letter to House and Senate Democrats, Alito rejected lawmakers' calls for him to recuse himself from two high-profile cases involving former President Donald Trump and January 6 rioters, saying he had nothing to do with the partisan flags flying over his properties.

"My wife is fond of flying flags," Alito wrote. "I am not."

But Alito's efforts to address the flag fiasco have left more questions than answers, all the while sparking another neutrality crisis for a high court already wracked by conflict of interest allegations.

Neighborly dispute

What began as a dispute over an anti-Trump sign in Alito's Virginia neighborhood back in 2021 has exploded into a national news story after The New York Times reported this month that an upside-down American flag was flown outside the justice's house soon after the January 6, 2021, Capitol riot.

Upside-down American flags have been used as a symbol to protest slavery and the Vietnam War, but the practice has more recently been adopted by proponents of the "Stop the Steal" campaign, which erroneously claims Trump won the 2020 presidential election.

Alito has repeatedly denied any part in flying the flag above his home, telling The Times earlier this month that his wife, Martha-Ann Alito, raised the flag in response to an ongoing fight with two residents in the neighborhood.

In his Wednesday letter, Alito said his wife was involved in "nasty" fight with two neighbors, adding that she only raised the flag after a male neighbor "berated her" using "foul language, including what I regard as the vilest epithet that can be addressed to a woman."

But Emily Baden, one of the neighbors involved in the dispute, told The Times this week that it was she — not her then-boyfriend — who used the curse word, saying the verbal altercation took place weeks after the flag was flown outside Alito's home. The outlet obtained a text message and police call that backed up Baden's timeline, calling into question Alito's version of events.

The Supreme Court did not immediately respond to a request for comment from Business Insider.

Alito said he asked his wife to take the flag down "as soon as I saw it," but for "several days," she refused.

"My wife and I own our Virginia home jointly. She, therefore, has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly," he wrote.

Martha-Ann Alito appeared to have at least some awareness of the upside-down flag's meaning in 2021, telling a Washington Post reporter at the time that the flag was "an international signal of distress" and suggesting its presence at her home was in response to the neighborhood dispute.

A second flag

Alito's explanation for why his wife raised the upside-down flag in January 2021 also doesn't account for the second controversial flag now tied to the couple.

The Times reported this month that an "Appeal to Heaven" flag was flown outside Alito's New Jersey beach house as recently as last summer. The flag also has ties to January 6, 2021, rioters and proponents of a more Christian government.

Alito said he was not familiar with the "Appeal to Heaven" flag when his wife flew it, writing that he assumed it was expressing a religious and patriotic message. He said neither he nor his wife were aware the flag had any association with the "Stop the Steal" movement.

"She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings," Alito wrote.

In his letter to Democrats, Alito says he is "confident" that his explanations are sufficient cause for rejecting calls for his recusal.

However, the Supreme Court's own code of conduct states justices shouldn't give the appearance of any political opinion or bias with regard to issues that could appear before the court. Alito and his colleagues will soon rule on two major cases related to the January 6, 2021, rioters and Trump in outcomes that could have an influence on the upcoming 2024 presidential election.

A legal ethics professor told BI earlier this month that the flags would have almost certainly disqualified Alito from such cases if he were on a lower court, but the Supreme Court's code of conduct is "merely performative."

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