By Sarah Fortinsky - 06/06/24

A former law clerk for Justice Samuel Alito is calling for him to recuse himself from cases before the Supreme Court in the wake of reporting that an upside-down American flag flew outside his home after the Jan. 6, 2021, attack on the U.S. Capitol.

“This is not an insignificant symbol,” Susan Sullivan said Wednesday in an interview on MSNBC.

“Irrespective of why it is there, who put it there — it shouldn’t have been there,” she added. “The problem is that flag is incendiary, and it cannot do anything other than raise a reasonable inference of bias.”

Sullivan, who clerked for Alito when he sat on the 3rd Circuit Court of Appeals, also said she was “aghast” when she saw the photos of the flag, noting, “I’ve never known Justice Alito to be anything other than an honorable man, to be a man of integrity.”

Alito is facing mounting pressure to recuse himself from cases since The New York Times first reported on the existence of an upside-down American flag on display outside his home after the Capitol riots in 2021.

At the time, the symbol was closely associated with the “Stop the Steal” movement, which tried to prevent the transfer of presidential power based on false claims of election fraud. Alito said he had nothing to do with the upside-down flag, and that his wife flew it amid a spat with neighbors.

Alito has remained defiant amid calls for him to recuse himself, even after the Times published reporting on a second flag related to the “Stop the Steal” movement that was on display outside his vacation home.

Early last week, Alito told lawmakers he would not recuse himself from a pair of cases the Supreme Court is expected to rule on in the coming weeks related to the Jan. 6 attack, including whether former President Trump has immunity from prosecution.

“The two incidents you cite do not meet the conditions for recusal … and I therefore have an obligation to sit [for the cases],” Alito wrote to Senate Judiciary Committee Chair Dick Durbin (D-Ill.) and Judiciary member Sen. Sheldon Whitehouse (D-R.I.), both of whom have called for his recusal from the pending cases.

“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,” Alito wrote, noting that they own their home “jointly” and that she has a “legal right to use the property as she sees fit.”

Sullivan’s interview on MSNBC follows her penning of a Philadelphia Inquirer op-ed in which she similarly called for Alito to recuse himself from cases related to the 2020 presidential election and the Jan. 6 rioting, saying the flag represents “more than a hint of political impropriety.”

“It irrefutably calls into question impartiality and bias toward the former president,” she continued. “It is a tangible demonstration of support for those who continue to assert that the election was stolen from him.”

“Justice Alito may or may not be biased in favor of the former president, but the flag flying upside down at his home in the past unequivocally telegraphs reasonable questions about his impartiality in cases involving Trump,” she wrote. “These questions, separate and apart from the crisis in confidence that such conduct may raise for the court, mandate Justice Alito’s recusal from these cases.”

“The gravity of the implications of Justice Alito’s refusal to recuse himself from these decisions cannot be understated. At stake is not only the independence of the court itself, but also its credibility, and its role as a protector of our constitutional democracy.”