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

Washington – Senate Judiciary Committee Chairman Dick Durbin and subcommittee chairman Senator Sheldon Whitehouse are seeking a meeting with Chief Justice John Roberts to discuss ethics issues at the Supreme Court following reports of flags flying outside the judge’s homes Samuel Alito provoked outrage.

The request from Durbin and Whitehouse, both Democrats, follows a pair in 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 2023.

The presence of the flags sparked backlash from Democrats, as both types of flags were carried by protesters who stormed the U.S. Capitol building on January 6, 2021, and have become associated with the “Stop the Steal” movement.

On a Letter to Roberts sent on Friday, Durbin and Whitehouse urged him to take steps to ensure Alito recuses himself from cases related to the 2020 presidential election and the January 6 attack. The Supreme Court currently has two cases pending involving these issues: the first involves use of obstruction charge by federal prosecutors levied against those allegedly involved in the January 6 attack; the second raises the question of whether Former President Donald Trump is entitled to broad immunity of criminal charges arising from his alleged efforts to subvert the transfer of presidential power following the 2020 elections.

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

“By displaying the inverted and ‘Appeal to Heaven’ flags outside his homes, Judge Alito actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promoted public confidence in the impartiality of the judiciary,” Durbin and Whitehouse said.

Democratic senators argued that the flags’ presence created reasonable doubt about their ability to be impartial and carry out their duties in the election and January-related cases.

“Your refusal in these matters is necessary and required,” they wrote.

Durbin and Whitehouse also reiterated their call for the Supreme Court to adopt an enforceable code of conduct for judges, and requested a meeting with Roberts “as soon as possible” to discuss steps to “resolve the Supreme Court’s ethical crisis.”

“Until the court and the Judicial Conference take meaningful action to resolve 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 ethical principles in November following reports about trips that Justice Clarence Thomas and Alito accepted from wealthy Republican donors. The trip was not included on any of the financial disclosure forms, although both judges said they did not believe they were required to publicly report the trips.

The code of conduct established by the high court lacks an enforcement mechanism and Senate Democrats have been pushing for it legislation that requires the Supreme Court adopt binding ethical rules to be adopted by the Senate plenary.

The latest political firestorm involving the justices erupted last week after the New York Times published its first report on the inverted American flag seen outside Alito’s Virginia residence in early 2021. An inverted flag was used to signal danger.

He told the Times in a statement that he had “no involvement in the raising of the flag” outside his home and said it had been “briefly placed by Ms. Alito in response to a neighbor’s use of objectionable and personally insulting language in the yard signals.”

The Times reported earlier this week that the “Appeal to Heaven” flag, also called the Pine Tree flag, was seen outside his New Jersey vacation home 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 flag 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 in his Second Treatise of Government.

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

Alito was pressured by Democrats to recuse himself from another case involving the constitutionality of an obscure tax, before the Federal Supreme Court this term. He participated in interviews with a Wall Street Journal editor and a lawyer who represented the couple involved in the tax case, which was heard by ministers in December. Alito rejected calls to recuse himself from the case and said in a statement that there was “no valid reason” for his recuse.