Liam Conner
Washington – Reports of two different flags flying outside Justice Samuel Alito’s homes have set off a political firestorm and reinvigorated focus on ethical practices at the Supreme Court, as Democrats push legislation that would require the court to adopt a binding code of conduct and call on the justices to refuse cases involving former President Donald Trump and the attack on the Capitol on January 6, 2021.
Alito, his wife and the two flags
Criticism of Alito follows a pair in reports from the New York Times who revealed an upside-down American flag flown outside his Virginia home in mid-January 2021, and an “Appeal to Heaven” flag was displayed outside his New Jersey vacation home in July and September 2023.
Both types of flags were carried by protesters who stormed the US Capitol building on January 6, 2021, prompting Democrats to denounce their presence outside Alito’s homes.
Government exhibition
The judge told the New York Times that he had “no involvement in the raising of the flag” outside his Virginia home in early 2021 and told the Times in a statement that it had been “briefly placed by Ms. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs The Supreme Court did not respond to a request for comment on the “Appeal to Heaven” flag.
An inverted American flag was used to signal danger and, according to the US Code“should never be displayed with the union lowered, except as a sign of extreme distress in cases of extreme danger to life or property.”
The “Appeal to Heaven” flag, also called the Pine Tree flag, dates back to the American Revolution and signified resistance to British colonization. The flag was often seen “on the seas as the ensign of cruisers commissioned by General Washington,” according to one report. Congressional report published in 2006. The phrase “appeal to heaven” was used by the 17th century philosopher John Locke, who wrote in his Second Treaty of Government that “where the body of the people, or any man, is deprived of its right, or is under the exercise of a rightless power, and has no appeal on earth, there they are at liberty to appeal to heaven, whenever they please . judge the cause of the moment sufficient.”
In recent years it has become associated with Christian nationalism.
Democrats call for Alito to recuse from January 6, Trump immunity cases
Senate Judiciary Committee Chairman Dick Durbin of Illinois criticized Alito over the episodes and called on him to recuse himself from cases before the Supreme Court involving an obstruction charge levied against the Jan. 6 defendants and whether the former -President Donald Trump should be protected from criminal prosecution on grounds of presidential immunity.
“He cannot play fast and loose with these political symbols without putting his own integrity at risk,” said Durbin, a Democrat.
Durbin said he expects the Senate to pass legislation, advanced by the Judiciary Panel last year, this would require the Supreme Court to adopt a binding code of ethics and implement procedures for handling complaints of judicial misconduct.
“It is time for the highest court in the land to move away from the lowest standard of ethics,” he said.
The Supreme Court issued a code of conductsigned by all nine sitting judges in November, but does not include an enforcement mechanism.
Forty-five House Democrats also asked Alito to recuse himself from cases related to the January 6 attack or the 2020 election. Letter addressed him on Tuesday, saying that even if he had no involvement in the flag display, “the fact of such a political statement in his home creates, at a minimum, the appearance of inappropriate political bias.”
While Republicans have largely defended Alito, others have questioned the possibility of displaying the American flag upside down.
“It’s not good judgment to do this,” Sen. Lindsey Graham of South Carolina, the top Republican on the Judiciary Committee, told reporters earlier this week. “He said his wife was insulted and got angry. I assume it’s true, but he’s still a Supreme Court judge.”
Republican Sen. Thom Tillis of North Carolina said it was “probably unwise” to have a flag with political meanings, but said other members of the high court had taken positions he disagreed with.
“If we want to be intellectually honest about this, let’s take a look at all the cases where there is some sort of political or ideological motivation,” he told reporters.
But Senate Minority Leader Mitch McConnell said there had been “nonstop attacks” on the high court.
“We need to leave the Supreme Court alone, protect them from the people who came into their neighborhoods and tried to harm them,” the Kentucky Republican said.
Flag reports emerge as Supreme Court prepares to release politically charged rulings
The revelations about the flags, which according to the New York Times were raised in January 2021 and the summer of 2023, come as the Supreme Court enters the final weeks of its term. The justices are prepared to make rulings on a range of politically charged issues, including abortion and guns. His rulings in two other cases could also have significant implications for Trump.
The first involves an obstruction law used to prosecute more than 350 defendants who allegedly participated in the Jan. 6 attack. Trump was charged with violating that law, which makes it a crime to “corruptly” obstruct an official proceeding and conspiracy to obstruct an official proceeding. He pleaded not guilty to both charges.
If the Supreme Court limits the scope of the law and finds that it cannot be applied to the January 6 attack, Trump could push for these two charges to be dismissed.
The second case involves whether he can be criminally prosecuted for his alleged actions surrounding the 2020 election. Trump has argued that he is entitled to broad immunity for allegedly official acts taken while in office, but special counsel Jack Smith, who brought the case against the former president, urged the Supreme Court to reject Trump’s claims.
The justices heard arguments in both cases in April and votes were held behind closed doors shortly thereafter. At this point in their term, the judges are working on their opinions, which will be announced publicly in the coming weeks. Supreme Court terms typically end at the end of June.
It seems unlikely that Alito will recuse himself from the cases involving Trump and January 6, but if he does and they are decided 5-4 with his participation, the court will be deadlocked 4-4. In these cases, the decisions of the lower courts stand.
In the January 6 case, this would mean that a ruling in favor of the Department of Justice’s U.S. Court of Appeals for the D.C. Circuit would be upheld. In the immunity case, a unanimous panel of three D.C. Circuit judges rejected Trump’s claims that he is largely protected from federal prosecution.
If Alito rejects calls for his impeachment, he may choose to explain why, as he did in September when refused Democrats’ demands move away from one tax case discussed in December. Alito had participated in interviews with a Wall Street Journal editor and a lawyer, David Rivkin, who represents the couple involved in the tax case.
“There is no valid reason for my recuse in this case,” Alito wrote in a four-page statement that was included in a routine list of Supreme Court orders.
