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Former President Donald Trump’s favorite Supreme Court justices might not even be the three he nominated.
Trump congratulated Justice Samuel Alito, who was nominated in 2005 by then-President George W. Bush, after the jurist on Wednesday refused to recuse himself from cases related to the January 6, 2021, riot at the Capitol or the 2020 election.
Alito said in a letter to lawmakers that he didn’t know that his wife had raised an upside-down flag in the days before President Joe Biden’s inauguration in January 2021. In any event, the deeds of his wife, Martha-Ann Alito, don’t meet his threshold for recusal.
Alito also addressed the “Appeal to Heaven” flag – which some interpret as pushing for more religion in the public space and has also become a symbol for Trump supporters – that was flown at the justice’s New Jersey beach house last summer. He said his wife flew the flag, which dates back to the American Revolution, and neither was aware of its current connotation.
But Trump was doing the social media equivalent of a fist pump at Alito’s declaration when he said this on his social media platform:
Congratulations to United States Supreme Court Justice Samuel Alito for showing the INTELLIGENCE, COURAGE, and “GUTS” to refuse stepping aside from making a decision on anything January 6th related. All U.S. Judges, Justices, and Leaders should have such GRIT - Our Country would be far more advanced than its current status as A BADLY FAILING NATION, headed by the Worst President in American History, Crooked Joe Biden!
The Supreme Court is currently deliberating over whether Trump, as a former president, should enjoy some level of super immunity from prosecution. It’s a complicated case, but certainly Alito was one of the justices most open to immunity claims during oral arguments in April.
Alito is also the justice who wrote the decision in Dobbs v. Jackson Women’s Health Organization, the landmark opinion that overturned Roe v. Wade and ended a nationwide right to abortion for American women. While Trump has waffled on how to handle the abortion issue now that there is a patchwork of laws across the country, his latest position is to leave the matter up to states, not unlike what Alito suggested in writing the opinion.
The actions of Alito’s wife, flying an upside-down flag as part of a neighborhood dispute over the outcome of the 2020 presidential election, are well within someone’s First Amendment rights. It’s also true that the Alitos’ judgment in how a Supreme Court justice should appear objective is suspect.
These relatively innocuous, political expressions pale in comparison to the actions of another Supreme Court spouse: Virginia “Ginni” Thomas, who in addition to being married to Justice Clarence Thomas (who was nominated in 1991 by George H.W. Bush) is a conservative activist featured prominently in the House January 6 report. She was actively strategizing around the fake elector scheme by which Trump’s allies wanted to upend Biden’s victory.
In text messages with Trump’s White House chief of staff Mark Meadows, Ginni Thomas referred to the 2020 election as a “heist.” She later told the January 6 committee she regretted the messages.
Unlike Alito, who responded to lawmakers’ calls for his recusal, Thomas has stayed silent on the matter, although it is clear at this point he will not be recusing himself from any January 6-related cases. Read more from CNN’s Devan Cole.
The perception of political bias among Supreme Court spouses does not necessarily mean anything about the political leanings of their powerful husbands, although Alito and Thomas form the core of the conservative majority that currently dominates the Supreme Court.
CORRECTION: This story has been corrected to reflect that Samuel Alito addressed the “Appeal to Heaven” flag in his letter.