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By Sean O'Driscoll
Senior Crime and Courts Reporter
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Supreme Court Justice Samuel Alito is facing increased pressure after his former neighbor has contested his version of the Stop The Steal flag controversy.
On Wednesday, Emily Baden gave her first TV interview about the bitter dispute she had with Alito's wife, Martha-Ann Alito.
Alito has said that his wife was responsible for flying the pro-Donald Trump flag in reaction to a public argument with their neighbor Baden, who is a Democrat.
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Baden agreed that she used explicit language in a public quarrel with Martha-Ann Alito, and that Baden's boyfriend had called the police. The neighbor, however, disputed the justice's timeline, saying that the dispute in which the word c*** was allegedly used to describe Martha-Ann Alito occurred a full month after Alito's house in Alexandria, Virginia, had be seen flying the pro-Trump Stop The Steal flag.
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If Baden's version of events is true, it would negate Alito's explanation that Martha-Ann Alito had flown the pro-Trump flag to provoke Baden following their dispute.
"At best, he's mistaken, but at worst, he's just outright lying," Baden said to CNN's Erin Burnett.
"Even if it were a valid excuse that they were having a dispute with a neighbor and that made them put the flag up, that timeline just disproves it. It just doesn't make sense," she said.
Newsweek sought email comment from Alito's office on Thursday.
Baden told CNN that her argument with Martha-Ann Alito occurred on February 15, 2021, a month after Biden's inauguration and long after Alito's house had flown an upside-down American flag—a nautical distress sign that became a symbol of the Stop The Steal movement. The movement, endorsed by Trump, falsely claimed that President Joe Biden had rigged the presidential election.
Republican President George W. Bush nominated Alito to the Supreme Court and he is one of the court's most conservative judges.
Supreme Court Chief Justice John Roberts, also nominated by former President George W. Bush, has since faced pressure to remove Alito from Trump's presidential immunity case, which is currently being decided by the court.
Trump, the presumptive 2024 Republican presidential nominee, was charged in Washington, D.C., with interfering in the 2020 election, attempting to overturn the result and encouraging the January 6, 2021, riot at the U.S. Capitol. He has pleaded not guilty and has taken a case to the Supreme Court, arguing that he has presidential immunity from prosecution.
In a letter to Roberts in late May, House Judiciary Committee Democrats asked Roberts to outline how the Supreme Court plans to use its new code of conduct to deal with the Alito controversy.
The letter points out that the code of conduct prohibits Supreme Court justices from endorsing political candidates and also compels justices to remove themselves from cases in which their "impartiality might reasonably be questioned."
David M. Driesen, a law professor at Syracuse University in New York, told Newsweek that Alito should now recuse himself from the Trump case.
"Judges must recuse themselves in cases where their participation would appear unfair. This does appear unfair in light of the raising of flags associated with rejection of the election results at his house," Driesen said.
Carl Tobias, a law professor at the University of Richmond in Virginia, told Newsweek that the weakness of the Supreme Court's ethics guidelines may save Alito from recusal.
"I doubt that the Chief Justice will suggest that Justice Alito recuse," he said, noting a letter that Alito sent to the Judiciary Committee in which he said he didn't believe he had done anything wrong.
Tobias said Alito's letter "seems to assert that recusal decisions are ones that each Justice makes perhaps after consulting other colleagues."
Tobias said Alito's position highlights a weakness in the ethics code that Supreme Court justices adopted in November 2023.
He said the conflict of interest standard in the Supreme Court ethics code was lower than the legally binding conflict of interest standard expected of lower court judges.
"The Chief Justice cares deeply about the Supreme Court's legitimacy, so one way that he could address this issue is by strengthening the Supreme Court ethics code," Tobias said.
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