A Supreme Court opinion written by Justice Samuel Alito on flags has resurfaced amid the controversy over his household flying an inverted flag in January 2021.
His wife Martha-Ann Alito hung the upside-down U.S. flag outside their home in Alexandria, Virginia, when it had become a symbol of the “Stop the Steal” campaign that aimed to overturn President Joe Biden’s 2020 election win.
Justice Alito has refused calls to recuse himself from cases involving the 2020 election and the January 6 Capitol riot by those who say he has signaled he is too biased to make fair judgments on these cases.
Democrat Senators Dick Durbin and Sheldon Whitehouse recently sent a letter to Supreme Court Chief Justice John Roberts requesting that Alito recuse himself from Trump vs. United States.
Alito responded on Wednesday, with a letter saying 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”.
He also blamed his wife for the flag, writing: “As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside-down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.
“My wife and I own our Virginia home jointly,” he added. “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.”
The topic has dominated national media, with calls for Alito to be impeached coming from political commentators and journalists on social media.
In the midst of all of this, a Supreme Court opinion written by Alito in October 2021 has resurfaced, as it shows what he has said about flags in the past.
The Supreme Court had to determine whether the City of Boston violated the First Amendment right to free speech by refusing to let Harold Shurtleff and his group Camp Constitution raise a Christian flag on a City Hall flagpole during an event there.
Boston argued that the flag raising constituted government speech, and not free speech, and they “worried that flying a religious flag at City Hall could violate the Establishment Clause”, which states that “Congress shall make no law respecting an establishment of religion.”
This was upheld by the District Court and the First Circuit Court of Appeals but reversed by the Supreme Court, who found that Boston had engaged in “viewpoint discrimination.”
The court came to this conclusion against the backdrop of Boston allowing many other private flags to be flown as representative of private expression and not government expression, including the Pride flag.
Boston argued that this was simply an example of how “all (or at least most) of the 50 unique flags it approved reflect particular city-endorsed values or causes.”
But, for numerous reasons spelt out in the judgment, the court found that Boston actually had a “lack of meaningful involvement in the selection of flags or the crafting of their messages.”
An upside-down American flag — a symbol embraced by Donald Trump’s supporters who falsely claimed the 2020 election was stolen — flew at Justice Samuel Alito’s home while the Supreme Court was considering an election case in early 2021. https://t.co/erCgpAZIDj pic.twitter.com/uwQOBNFOJY
— The New York Times (@nytimes) May 16, 2024
The court wrote: “When the government does not speak for itself, it may not exclude private speech based on ‘religious viewpoint;’ doing so ‘constitutes impermissible viewpoint discrimination.'”
In Alito’s concurring opinion, he wrote at length about the fact that, while it would be reasonable for a person walking past City Hall to assume the flag was representative of the government’s views, “the City put the flagpoles to an unorthodox use—allowing private parties to use the poles to express messages that were not formulated by city officials.”
He said: “The court concludes that two of the three factors—history and public perception—favor the city. But it nonetheless holds that the flag displays did not constitute government speech.”
Alito’s Supreme Court opinion seems consistent with the current argument that he is making—that his wife hanging the flag outside their house is different to if he had done it.
The flag controversy has resurfaced this week after The New York Times published an article debunking Alito’s version of the circumstances surrounding the raising of the flag.
Newsweek has contacted Alito for further comment via email to the Supreme Court’s Public Information Office.
Read the full article here
