Samuel Alito May Have Made ‘Grave’ Move in Letter to Congress—Legal Analyst

Supreme Court Justice Samuel Alito may have made a “grave” move in his letter to Congress following backlash over a photograph of an upside-down American flag being flown outside his home, according to legal analyst Harry Litman on Saturday.

Last month, a photograph taken on January 17, 2021, of an upside-down American flag displayed outside of conservative Justice Alito’s home was reported by The New York Times. The inverted flag—spotted just days before President Joe Biden’s inauguration—is a symbol, often referred to as “Stop the Steal,” that has been used by supporters of former President Donald Trump to contest the 2020 presidential election results and was taken less than two weeks after a group of Trump supporters stormed the U.S. Capitol building on January 6, 2021.

Shortly after the photograph was reported, Democratic Senators Dick Durbin of Illinois and Sheldon Whitehouse of Rhode Island sent a letter to Supreme Court Chief Justice John Roberts requesting that Alito recuse himself from Trump v. United States in response to the recent controversy. The case centers around the former president’s claims that presidential immunity should protect him from criminal prosecution as he faces a federal election subversion case.

Alito responded directly to the senators in a letter dated May 29 and told them that he refused to do so because the incidents they cited did “not meet the conditions for recusal.”

In his letter, the justice reiterated his previous statement, which had placed all the responsibility on his wife, Martha-Ann Alito, flying the inverted flag as he wrote that his wife had a “legal right to use the property as she sees fit” and repeated claims about how upset she was over a “very nasty” dispute with neighbors at the time.

In a Saturday interview on CNN, Litman, a former deputy assistant attorney general, was asked about Alito’s letter and if the justice misled or lied to Congress following his former neighbor, Emily Baden, speaking out against Alito.

“At best, he’s mistaken, but at worst he’s just outright lying,” Baden said earlier this month while appearing on CNN’s Erin Burnett OutFront about the time frame of the dispute.

Baden said the verbal exchange with Alito’s wife occurred in the middle of February 2021, adding the inverted flag was “absolutely” not flown because of the confrontation that occurred that day and had been put up weeks earlier.

Newsweek has reached out to the Alito through the Supreme Court via email for comment.

In response, Litman said while it’s unclear if the neighbor’s account of events is accurate, if there is a discrepancy with Alito’s letter, it is an “exceptionally grave” move.

“I’m not saying that the neighbor’s word should be taken over that of the Justice of the United States. However, there is a discrepancy and I really think it is essential to get to the bottom of it. If it’s the case, I am not saying it’s the case, but if it is that Justice Alito sent a letter to Congress and didn’t tell the truth in it that is exceptionally grave. I think that would be an impeachable offense,” he said.

Litman added: “As to this discrepancy the neighbor says that there is material evidence, we have a picture in The New York Times in January and a police report of the altercation in February, which Justice Alito says triggered it.”

Amid recusal calls, Carl Tobias, a law professor at the University of Richmond in Virginia, previously told Newsweek that the weakness of the Court’s ethics guidelines may save Alito from recusal.

“I doubt that the Chief Justice will suggest that Justice Alito recuse,” he said, noting Alito’s letter, adding that it “seems to assert that recusal decisions are ones that each Justice makes perhaps after consulting other colleagues.”

Tobias said the controversy surrounding Alito highlights a weakness in the ethics code that Supreme Court justices adopted in November 2023 as the conflict of interest standard in the code was lower than the legally-binding conflict of interest standard expected of lower court judges.

“The Chief Justice cares deeply about the Supreme Court’s legitimacy, so one way that he could address this issue is by strengthening the Supreme Court ethics code,” Tobias added.