Senate Judiciary Committee Chairman Dick Durbin and subcommittee leader Sen. Sheldon Whitehouse are seeking a meeting with Chief Justice John Roberts to investigate Supreme Court ethics issues following reports of flags being flown outside Justice Samuel Alito’s houses.
The request from Durbin and Whitehouse, both Democrats, follows a pair of New York Times reports revealing that an upside-down flag flew outside Justice Samuel Alito’s Virginia home in mid-January 2021, and a “Appeal to Heaven” flag was displayed outside his New Jersey vacation home in the summer of 2023.
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The placement of the flags outraged Democrats because rioters who broke into the US Capitol building on January 6, 2021, carried both types of banners and became associated with the “Stop the Steal” movement.
Durbin and Whitehouse wrote to Roberts on Friday, urging him to take steps to guarantee Alito recuses himself from matters involving the 2020 presidential election and the Jan. 6 incident. Two cases are currently pending at the Supreme Court, one involving federal prosecutors’ use of an obstruction charge against those allegedly involved in the Jan. 6 assault, and the other questioning the entitlement of former President Donald Trump to broad immunity from criminal charges related to his alleged efforts to undermine the transfer of presidential power following the 2020 election.
Alito participated in oral arguments in both cases, which took place in April, and the Supreme Court’s rulings are expected in the coming weeks. The court’s term is scheduled to expire in late June or early July, with verdicts on abortion, weapons, 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,” said Durbin and Whitehouse.
The Democratic senators stated that the existence of the flags cast reasonable doubt on his capacity to be impartial and carry out his duties in the election and January-related issues.
“His recusal in these matters is both necessary and required,” they stated.
Durbin and Whitehouse also reaffirmed their call for the Supreme Court to create an enforceable code of conduct for justices, and they asked for a meeting with Roberts “as soon as possible” to discuss how 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,” stated the Democrats.
In November, the Supreme Court approved a set of ethics rules in response to disclosures about trips taken by Justice Clarence Thomas and Alito with wealthy Republican supporters. Neither of their financial disclosure forms mentioned the travel, and both justices expressed their belief that they were not obligated to publicly declare the visits.
The top court’s code of conduct lacks an enforcement mechanism, and Senate Democrats have been pursuing legislation requiring the Supreme Court to adopt binding ethics regulations that will be considered by the full Senate.
The current political maelstrom involving the justices erupted this week when the New York Times published its first article on the upside-down American flag seen outside Alito’s Virginia home in early 2021. People have used an upside-down flag to signal trouble.
He said in a statement to the Times that Mrs. Alito “briefly placed the flag outside his home in response to a neighbor’s use of objectionable and personally insulting language.”
Earlier this week, The Times reported that he saw the “Appeal to Heaven flag,” also known as the Pine Tree flag, outside his vacation house in New Jersey last summer.
The flag originated during the American Revolution as a symbol of opposition to British dominance. According to a 2006 congressional study, General Washington frequently saw it “on the seas as the ensign of the cruisers.” John Locke, a seventeenth-century philosopher, used the phrase “appeal to heaven” in his Second Treatise of Government.
This term, Democrats have urged Alito to withdraw himself from one other issue before the Supreme Court, which involves the validity of an obscure tax. In December, he spoke with a Wall Street Journal editor and a lawyer who represented the couple in the tax matter before the justices. Alito rejected requests to step aside in the case, saying in a statement that there was “no valid reason” for his recusal.
