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Justice Samuel Alito declines to recuse himself in Jan. 6-related cases

STEVE INSKEEP, HOST:

Supreme Court Justice Samuel Alito says he will not recuse himself from cases related to former President Trump and his 2020 election defeat.

A MARTÍNEZ, HOST:

Members of Congress asked him to step aside on the grounds that he expressed an opinion about Trump or at least that his household did. An American flag flew upside down at his house in 2021, and another flag flew at another house he owns.

INSKEEP: Lawrence Hurley covers the Supreme Court for NBC News, and he joins us. Good morning, sir.

LAWRENCE HURLEY: Good morning.

INSKEEP: OK, let's review this. These are flags - they can be associated with the Stop the Steal movement, and so forth, the upside-down American flag, the Appeal to Heaven flag. How does Justice Alito justify flying them at his two homes?

HURLEY: Well, first of all, he's pointing to these new Supreme Court ethics guidelines that were only just introduced last year, and they have a pretty high standard for recusal. One of the key elements is that they're self-enforcing. So it's the justices themselves who decide whether they're going to step aside, and no one can really question that. And the key issue here is he's saying, you know, the standard to recuse is very high because it's assumed that the justices have to sit on cases because there's only nine justices and you can't replace them. And then he says, the standard is that a neutral, reasonable, and unbiased person would have to think that he needs to recuse, and he doesn't think that that's the case. And, of course, the key element here is that he's saying it's his wife, Martha-Ann Alito, who put up both flags. He says she has a First Amendment right herself to express her opinions. He had nothing to do with it. In fact, in one case, he asked her to take a flag down, and she refused to for several days.

INSKEEP: Yeah.

HURLEY: And so, you know, he's saying there's a lot of things here to suggest that, you know, it's nothing to do with him.

INSKEEP: It is really remarkable. He says in this letter, a reasonable person could not possibly disagree with me unless they're biased or trying to influence Supreme Court cases. He gets to decide that himself?

HURLEY: Yeah, I mean, this is the standard that the court adopted last year in part because of various stories that had come out about Justice Clarence Thomas and his trips that he'd taken that were paid for by a billionaire, and also a couple of stories about Alito himself.

INSKEEP: Thomas also had questions about his wife, Ginni Thomas, didn't he?

HURLEY: Well, exactly. And Justice Thomas - his wife Ginni Thomas was involved much more actively in efforts to overturn the election results. And Thomas has not stepped aside from these cases.

INSKEEP: Can we just talk about the symbolism of these flags? Because Alito did not actually say, you know, Trump 2024, vote for Trump, Trump won. These flags flew. And he tries to make a case that they do not necessarily mean what you think they mean. How strong is that part of his argument?

HURLEY: Well, I think there's been a lot of back and forth on this. I think during the January 6 attack on the Capitol, for example, you can see in the video footage, some people having the appeal to heaven flag, and the upside-down flag has also been associated with this. But in both cases, there was a history preceding January 6 of people using these flags.

INSKEEP: Isn't there - and we just got a couple of seconds here - but isn't there a ruling coming very soon on Trump's trial relating to the 2020 election?

HURLEY: Yeah, this is Trump's immunity case, whether his election interference case can move forward, and that's going to be a huge case that could be decided as soon as the next few days.

INSKEEP: And we presume it will include Justice Alito. Lawrence Hurley, thanks so much.

HURLEY: Thanks a lot.

INSKEEP: He covers the Supreme Court for NBC News. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.