Warning that Supreme Court Justice Samuel Alito has "created reasonable doubt about his impartiality" by displaying two flags on his private properties associated with the January 6, 2021 insurrection effort by former President Donald Trump and his allies, two Democratic Senate leaders on Thursday called on Chief Justice John Roberts to support their call for Alito's recusal from related cases before the court.
Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.), who chairs the panel's Federal Courts, Oversight, Agency Action, and Federal Rights Subcommittee, wrote a letter to Roberts a day after The New York Times reported that an "Appeal to Heaven" flag was displayed at Alito's beach house last year. The flag has roots in Christian nationalism and has been adopted by the "Stop the Steal" movement that falsely claims the 2020 election was stolen from Trump.
That reporting followed the revelation that an upside-down American flag had also flown at Alito's home, linking the right-wing justice to another symbol that's been embraced by the Stop the Steal movement and that was carried by some rioters on January 6.
"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," wrote Durbin and Whitehouse.
The senators added that Alito had called into question "his ability to fairly discharge his duties in cases related to the 2020 presidential election and January 6th attack on the Capitol."
The court is expected to rule in the coming weeks on two such cases: one regarding whether insurrectionists should have been charged with obstruction and one pertaining to Trump's claim that he has immunity in his federal election interference case.
"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."
"His recusal in these matters is both necessary and required," wrote the senators of Alito.
Durbin and Whitehouse requested a meeting with Roberts about the matter "as soon as possible," and renewed their call for the court "to adopt an enforceable code of conduct for Supreme Court justices."
Late last year, the court introduced a new ethics code for the justices, but included no enforcement mechanism.
Last July, Whitehouse proposed the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which would require an enforceable code of conduct and stronger disclosure rules for justices. The legislation was needed, said proponents, to prevent justices from accepting gifts from partisan groups, following reports that Alito and Justice Clarence Thomas had gone on luxury trips and had other financial ties with right-wing operatives who had been involved in cases before the court.
"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," wrote Durbin and Whitehouse.
On Wednesday, Rep. Alexandria Ocasio-Cortez (D-N.Y.) urged the Judiciary Committee to take decisive action to hold Alito accountable by sending a subpoena to the justice.
"Democrats have a responsibility for defending our democracy," said the congresswoman.
