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Senate Democrats seek meeting with Chief Justice John Roberts after Alito flag controversy

Calls grow for Alito to recuse himself
Flag reports prompt calls for Alito to recuse himself from Jan. 6 cases 02:30

Washington — Senate Judiciary Committee Chairman Dick Durbin and subcommittee head Sen. Sheldon Whitehouse are seeking a meeting with Chief Justice John Roberts to discuss ethics issues at the Supreme Court after reports of flags flown outside Justice Samuel Alito's homes sparked outrage.

The request from Durbin and Whitehouse, both Democrats, comes on the heels of a pair of reports from the New York Times that revealed an upside down flag flew outside Justice Samuel Alito's Virginia home in mid-January 2021, and an "Appeal to Heaven" flag was displayed outside his New Jersey vacation home in the summer of 2023.

The presence of the flags led to backlash from Democrats, since both types of flags were carried by rioters who breached the U.S. Capitol building on Jan. 6, 2021, and have become associated with the "Stop the Steal" movement.

In a letter to Roberts sent Friday, Durbin and Whitehouse urged him to take steps to ensure Alito recuses himself from cases relating to the 2020 presidential election and Jan. 6 attack. The Supreme Court currently has two cases pending before it involving those matters: the first involves federal prosecutors' use of an obstruction charge levied against those allegedly involved in the Jan. 6 assault; the second raises the question of whether former President Donald Trump is entitled to broad immunity from criminal charges stemming from his alleged efforts to subvert the transfer of presidential power after the 2020 election.

Alito participated in oral arguments in both cases, which were heard in April, and decisions from the Supreme Court are expected in the coming weeks. The court's term is expected to wrap up by the end of June and early July and bring rulings in disputes involving abortion, guns and federal regulatory power.

"By displaying the upside-down and 'Appeal to Heaven' flags outside his homes, Justice Alito actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promotes public confidence in the impartiality of the judiciary," Durbin and Whitehouse said.


The Democratic senators claimed the presence of the flags created reasonable doubt about his ability to be impartial and discharge his duties in the election and Jan.-related cases.

"His recusal in these matters is both necessary and required," they wrote.

Durbin and Whitehouse also reiterated their call for the Supreme Court to adopt an enforceable code of conduct for justices, and they requested a meeting with Roberts "as soon as possible" to discuss steps to "address the Supreme Court's ethics crisis."

"Until the court and the Judicial Conference take meaningful action to address this ongoing ethical crisis, we will continue our efforts to enact legislation to resolve this crisis," the Democrats said.

The Supreme Court adopted a set of ethics principles in November following reports about trips Justice Clarence Thomas and Alito accepted from wealthy Republican donors. The travel was not included on either of their financial disclosure forms, though both justices said they did not believe they were required to publicly report the trips. 

The code of conduct instituted by the high court lacks an enforcement mechanism, and Senate Democrats have been pushing for legislation requiring the Supreme Court to adopt binding ethics rules to be taken up by the full Senate.

The latest political firestorm involving the justices erupted last week after the New York Times published its first report on the upside down American flag seen outside Alito's Virginia residence in early 2021. An upside down flag has been used to signal distress.

He told the Times in a statement that he had "no involvement whatsoever in the flying of the flag" outside his home and said it had been "briefly placed by Mrs. Alito in response to a neighbor's use of objectionable and personally insulting language on yard signs." 

The Times then reported earlier this week that the "Appeal to Heaven flag, also called the Pine Tree flag, was seen outside his vacation home in New Jersey last summer.

The flag dates back to the American Revolution and signified resistance to British colonization. It was often seen "on the seas as the ensign of the cruisers commissioned by General Washington," according to a congressional report published in 2006.  The phrase "appeal to heaven" was used by 17th-century philosopher John Locke in his Second Treatise of Government.

The Supreme Court did not return a request for comment on the "Appeal to Heaven" flag.

Alito has come under pressure from Democrats to recuse himself from one other case, involving the constitutionality of an obscure tax, before the Supreme Court this term. He participated in interviews with an editor at the Wall Street Journal and a lawyer who represented the couple involved in the tax case, which was heard by the justices in December. Alito rebuffed the calls to step aside in the case and said in a statement there was "no valid reason" for his recusal.

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