Questions have been raised regarding U.S. Supreme Court Justice Samuel Alito‘s involvement in a ruling related to January 6 defendants in the wake of details around Chief Justice John Roberts‘ alleged strong-arming of cases linked to former President Donald Trump.
The New York Times reported on Sunday, based on apparent leaked memos from Roberts and other justices and interviews with unnamed court insiders, that Roberts had asked Alito in April to write the majority opinion on Fischer v. United States, before Roberts made the extremely rare move of deciding to write it himself.
In June, the nation’s highest court voted 6-3 in the Fischer case that a federal charge of obstructing an official proceeding must include proof that a defendant tried to tamper with or destroy documents. The decision meant that hundreds of Trump supporters who were charged with obstructing an official proceeding in relation to the 2021 Capitol riot are having their cases reexamined.
U.S. Supreme Court Associate Justice Samuel Alito sits during a group photo of the justices at the court in Washington, D.C., on April 23, 2021. Alito and Chief Justice John Roberts have been criticized over reports Alito was pulled from writing the majority opinion on a case linked to the January 6, 2021, U.S. Capitol riot.
Erin Schaff-Pool/Getty Images
While the reason for the majority opinion switch is unclear, The Times said it is “suggestive” to note that it occurred shortly after the paper reported in May that Alito had an upside-down flag associated with the 2020 election “Stop the Steal” movement flying outside his Virginia home just days after the January 6 attack.
Alito said his wife had raised the inverted flag during a dispute with their neighbors over an anti-Trump lawn sign, and that he was unaware of its ties to the false claims that the 2020 election was rigged against Trump because of widespread voter fraud.
There have now been questions from experts as to why Roberts originally allowed Alito to write the Fischer opinion despite allegedly being aware of the January 6-linked flag—with The Washington Post declining to run a story on its appearance at Alito’s home in 2021—or why Alito did not recuse himself from the case.
Alex Aronson, executive director and founder of Court Accountability, posted on X, formerly Twitter: “Roberts knew in 2021 that Alito was waving the insurrectionist flag and *still* assigned the Jan 6 opinion to him in 2024, only taking it away after the flag became a huge scandal.
“And how about Alito’s recusal argument that no reasonable person could question his impartiality?”
Fix the Court, a group that advocates for term limits for Supreme Court justices, asked if the majority opinion switch was a “mere coincidence or recusal-light?” while sharing The Times‘ report.
“Chief Justice Roberts wrested the majority opinion in Fischer away from Justice Alito after the flag stories broke. May indicate someone shouldn’t have been hearing the case to begin with,” they wrote.
A former CIA agent who posts on X under Secrets and Laws wrote: “Remember, CJ Roberts knew about the Alitos’ upside down flag controversy shortly after it happened, and he assigned the Jan 6 case to Alito anyway—showing he saw no problem with it. He only took over the opinion from him once news of the flag leaked. A rotten institution.”
Mark Joseph Stern, a senior writer for Slate covering the courts, added: “It’s HIGHLY unusual for a majority opinion to be reassigned from one justice to another when nobody has flipped.
“It seems Roberts seized the J6 case from Alito to avoid bad optics. Which is so damning—if Alito couldn’t *write* the opinion, he obviously needed to recuse himself.”
All nine justices declined to respond to written questions from The Times. The Supreme Court has been contacted for comment by Newsweek.
A second flag with ties to Christian nationalism that was also at the January 6 riot was reportedly flown at another of Alito’s properties in New Jersey in 2022.
In May, Alito wrote to Democratic Senators Dick Durbin and Sheldon Whitehouse to dismiss the suggestion that the appearance of the flags created an “appearance of impropriety that requires my recusal” from the Supreme Court cases related to Trump and the January 6 Capitol riot.
“My wife is fond of flying flags. I am not. My wife was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years,” Alito said.
“A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that this event does not meet the applicable standard for recusal.”
Speaking to The Times, Paul J. Wahlbeck, a professor at George Washington University who has studied opinion assignments, noted how rare a move it was for Roberts to replace Alito as a majority opinion writer after assigning him the responsibility.
“Can I tell you an instance when it’s happened? No,” Wahlbeck said.
