Courts

Former Alito Clerk Flips On Old Boss Over Upside Down Flag

She urges the justice to recuse himself.

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Supreme Court Justices Samuel Alito And Elena Kagan Testify Before The House Appropriations Committee

(Photo by Chip Somodevilla/Getty Images)

The relationship between a clerk and the judge they work for is often described as special — a mentor/mentee bond on steroids. And when the jurist in question sits on the Supreme Court, clerks can find a whole lotta doors open up because of this job. Even years after the clerkship ends the bond often remains strong and is frequently described as familial.

So, it’s not often that a clerk comes forward and criticizes the judge they worked for. When they do, it’s usually because the behavior is beyond the pale.

Susan Sullivan, professor at Temple University, clerked for Samuel Alito when he was on the Third Circuit. Despite that connection, Sullivan appeared on MSNBC expressing just how problematic Alito’s penchant for flying flags favored by insurrectionists really is. “I was aghast when I saw those photographs because I’ve never known Justice Alito to be anything other than an honorable man, to be a man of integrity,” Sullivan said. “It is irrelevant if Mrs. Alito flew it or not. The fact is that flag was there.”

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

Of course, despite the controversy of the various flags flying a Alito residences, the justice has refused to recuse himself from cases related to January 6th. Sullivan vehemently disagrees with this call, writing an article for the Philadelphia Inquirer urging Alito to recuse himself from cases involving Donald Trump.

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. 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.

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Despite this well reasoned plea, I’d be shocked if Alito demonstrated this level of discretion.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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