Justice Alito’s Modified, Limited Hangout


On Wednesday, Supreme Court Justice Samuel Alito doubled down on his refusal to recuse himself in the pending Court case in which Donald Trump claims immunity from being prosecuted for his actions on and before January 6. Justice Alito sent a letter saying so to Senate Judiciary Committee Chair Dick Durbin (D-IL) and committee member Sheldon Whitehouse (D-RI).

Yesterday, for the first time, Chief Justice John Roberts took full ownership of his right-wing colleague’s abandonment of judicial ethics. The Chief Justice declined to meet with the two senators after they had asked to meet about Justice Alito’s refusal to recuse. He thereby added injury to insult.

Justice Alito’s letter the day before was a shrill non-denial denial, though the added detail—much of it superfluously self-serving—to a far shorter statement he had previously emailed the New York Times. On May 16, the Times had posted a story with a photo of an upside-down American flag flying at the Alitos’ home shortly after Jan. 6, 2021.

A traditional sign of distress, an upside-down flag was carried by some who invaded the Capitol that fateful day. While it flew over the Alitos’ house on January 17, 2021, the Court still had before it the Pennsylvania Republican Party’s petition for certiorari seeking to overturn the state’s presidential election; Alito dissented from the denial of certiorari issued the next month.

In its May 16, 2024 story, the Times included Alito’s brief emailed statement that the upside-down flag-flying was the doing of his wife, Martha-Ann; he said that it related to a nasty dispute with neighbors and that he was not involved. (The Times seems to have evidence, however, that the neighborhood dispute didn’t erupt until after the flag was taken down.)

On May 23, the Times posted a photo of a second flag associated with Jan. 6 Capitol invaders and flying at a different Alito home: An “Appeal to God” or “Pine Tree” flag was flapping at the Alito’s New Jersey vacation house.

Now that’s lightning striking the same family’s flagpoles twice, and in two different locations—a stunning coincidence if no one in the family intended to signal identification with those who breached the Capitol on January 6.

There are a series of tip-offs that there may be important things not being disclosed. One clue is in an observable PR sequence that often happens in DC and elsewhere when something gone amiss becomes public.

Step One: “Deny, deny, deny,” as Hope Hicks, Donald Trump’s one-time campaign communications director, testified was the initial strategy in 2016 when the Access Hollywood tape first emerged.

Step Two: If the storm continues, prepare a “modified limited hang-out.” That phrase was apparently concocted by John Ehrlichman, one of President Richard Nixon’s two top White House aides and a Watergate convict. The phrase stands for putting out a bit more information to see if it slows the public onslaught. But certainly don’t tell the whole truth and nothing but the truth.

Step Three: Get a pre-release copy of your modified, limited hang-out to a media ally so a glowing column on it is ready to go. The Wall Street Journal had its editorial—the full board!—full of quotes from the letter in the can ready to go and out Wednesday.

Wednesday’s letter was Alito’s step two, adding color and detail to his original statement to the Times. Regarding the upside-down flag, the Justice wrote that in January 2021, he had asked his wife to take it down, but “for the first several days, she refused.” He said that she “likes flying flags.”

Regarding the “Appeal to Heaven” flag, the letter said that neither he nor his wife were “aware of any connection between this historic flag and the ‘Stop the Steal’ movement.” There was no similar assertion of unawareness with respect to the upside-down flag.

Perhaps awareness is why the Justice asked her to take it down. Was she flying the quiet part out loud?

Indeed, what made Justice Alito’s denials non-denials is the absence in either Alito communication of simple, clear statements for which the controversy called. For example: “I do not support those who invaded the Capitol on January 6. Nor does my wife.” Justice also omitted assurances like this: “Acts of lawless protest are the opposite of the rule of law, for which I stand.”

It’s not justice but the Justice here who’s turning a blind eye. What he doesn’t seem to see is that the question of improper appearances goes beyond partiality in pending cases. It’s also about whether he believes in violence or the rule of law.

Call me a suspicious old-time former prosecutor about a questionable coincidence. I remember prosecuting a lumber yard owner in Oakland, California, who had a fire at his business. He’d moved from New Jersey . . . where he’d also had a fire at his lumber yard.

He collected insurance proceeds from the first fire without any serious criminal investigation. But two fires by the same owner on different coasts? That prompted federal interest, an indictment, and a conviction for both arsons.

Coincidences happen, but two insurrection-associated flags combined with the notable absence of any condemnation of the “Stop the Steal” movement or January 6? It’s enough to make a person wonder.

This skeptic’s antenna also goes up whenever the subject of critique doth protest with too much righteous indignation over legitimate questions being raised. Justice Alito’s Wednesday letter goes full feminist civil rights protector, speaking of his wife’s First Amendment rights and her entitlement to make her own decisions. He even shared that she bought the vacation home with her own money. Not to mention how much she has sacrificed being a Supreme Court Justice’s spouse.

TMI, already! All those things can be true right alongside the appearance of impropriety, especially in the absence of any statement dissociating himself from the violence on January 6.

We’re talking about the Court’s fragile legitimacy. Recusal need not be a confession of wrongdoing but is surely a service to the legitimacy of an institution he’s been part of for nearly two decades.

Regrettably, that’s all quite clearly in Justice Alito’s blind spot. Note his letter’s peremptory tone as it hurled unsubtle accusations at his accusers:

A reasonable person who is not motivated by political or ideological considerations or desire to affect the outcome of Supreme Court cases would conclude that this event does not meet the applicable standard for recusal.

The letter includes that exact same sentence twice in two-and-a-half pages. The same Trumpian “I’m-rubber-and-you’re-glue” projection tactic.

Seven decades ago, Justice Abe Fortas resigned from the Court for an apparent conflict of interest that seems quaint by today’s standards. The accusations against him certainly cast no cloud on his loyalty to the Constitution. That was a time when we not only expected a higher standard of ethical conduct from our Supreme Court justices. We also got it.

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