First it was Mrs. Alito’s day-long flying of an upside-down American flag that Democrats said required Justice Samuel Alito to recuse from the pending Supreme Court cases involving Jan. 6 defendants and Trump’s appeal concerning presidential immunity. Less than a week later, Democrats pounced on the news that an Appeal to Heaven flag hung outside the Alitos’ beach house. Clearly, the conservative justice must now recuse in the high-profile cases, the corrupt media declared, parroting their Democrat pals.
On the contrary, there is no basis for Justice Alito to recuse. And the only thing clear is how insane the efforts to target the Supreme Court justice have become.
As I explained last week, based on my years researching the federal codes of conduct, Mrs. Alito’s flying of an upside-down American flag raised no ethical issues for Justice Alito. The Code of Conduct for Justices (as the codes of conduct that apply to federal judges and judicial employees), does not govern spouses, and a judge’s only obligation is to disassociate himself or herself from his or her partner’s political activities. Justice Alito did that when the story broke, making clear he had nothing to do with the flag.
Whether Justice or Mrs. Alito flew the Appeal to Heaven flag is currently unknown — but also completely irrelevant.
Notwithstanding the concerted effort by politicians and the press to portray the flag as a symbol of “Stop the Steal,” or Jan. 6, 2021, there was nothing inherently political about displaying the Appeal to Heaven flag. Rather, the only thing intrinsically conveyed by the display of the flag, also known as the Pine Tree Flag, is “a patriotic message of democratic resilience…” That flag dates to revolutionary times, with “[t]he first six schooners commissioned by the Continental Congress to intercept British ships sailing into Boston in October 1775,” flying the flag on the order of George Washington’s secretary.
While some Jan. 6 protesters — like some Black Lives Matter protesters who took over the streets of D.C. a few months earlier — displayed the Pine Tree Flag, there is just no reasonable basis to suggest the display of an Appeal to Heaven flag represents support for some specific message, much less one that created a conflict related to the Jan. 6 and presidential immunity appeals.
The key word here is reasonable, as the expressed language of Canon 3B(2) of the Supreme Court’s Code of Conduct provides that “[a] Justice should disqualify himself or herself in a proceeding in which 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.”
No reasonable person would doubt Justice Alito’s ability to fairly discharge his duties in ruling on the cases at issue because of the flying of the Pine Tree Flag at his beach house. Given the historic origins of the flag and the patriotic purpose a display of the Appeal to Heaven flag can connote, an argument of bias requires one to assume the banner meant something else and something specifically connected to the Jan. 6 protesters or Trump. But the Supreme Court’s ethical rules, specifically Canon 3B(1), provide that a justice “is presumed impartial.” Thus, there is no case for recusal — at least no reasonable one.
Democrats recognize this, just as they know their unjust media blitz will not prompt Alito’s recusal. Unlike politicians who capitulate when faced with false narratives to avoid a firestorm of bad press, that strategy fails when aimed at the lifetime appointees of the Supreme Court — which is precisely why our founders enshrined that protection in Article III of the Constitution.
The contrived attacks on Justice Alito serve only one purpose: to delegitimize the Supreme Court and its forthcoming opinions. Apparently, for Democrats, questioning the integrity of our government is no longer a threat to democracy — but flying a Revolutionary War-era flag is.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
Comments are closed.