Justice Samuel Alito

U.S. Supreme Court Associate Justice Samuel Alito appears before a House Appropriations Committee hearing on March 7, 2019 in Washington, D.C.

(Photo: Chip Somodevilla/Getty Images)

Alito Family's Upside-Down Flag After Jan. 6 Sparks Call for Justice's Recusal

"This behavior is disqualifying for a Supreme Court justice," said one critic.

U.S. Senate Judiciary Committee Chair Dick Durbin was among those on Friday who called for Supreme Court Justice Samuel Alito's recusal from cases related to the 2020 election after The New York Timesreported the justice flew an upside-down flag outside his home in the days leading up to President Joe Biden's inauguration.

The display of an inverted flag officially symbolizes "dire duress" according to the U.S. code, and has been used at various times by people across the political spectrum to signify distress over U.S. policy and disapproval of the government.

At the time Alito's family displayed the flag, just over a week after then-President Donald Trump urged his supporters to riot at the U.S. Capitol when lawmakers were certifying the election results, the "Stop the Steal" movement had embraced the symbol to show their belief that the election had been stolen for Biden—despite all evidence to the contrary.

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

But Durbin (D-Ill.) said the display on January 17, 2021—and for several days before that—clearly created "the appearance of bias."

"Justice Alito should recuse himself immediately from cases related to the 2020 election and the January 6 insurrection, including the question of the former president's immunity in U.S. v. Donald Trump, which the Supreme Court is currently considering," said the senator.

The news of Alito's upside-down flag comes after numerous reports about ethical breaches by right-wing Supreme Court justices including Alito and Justice Clarence Thomas.

Both of the justices have accepted luxury travel and have had other financial transactions with right-wing operatives who have been involved in cases before the court, and Thomas has drawn condemnation for continuing to serve on a case regarding documents being turned over to the House Select Committee on the January 6 Attack after it was revealed that his wife had supported efforts to overturn the 2020 election results.

In the coming weeks, the court is set to rule on Trump's claim that he has immunity in his federal election interference case and in a separate case regarding whether January 6 defendants should be charged with obstructing an official proceeding.

Despite four ongoing criminal cases, Trump is the presumptive Republican nominee to face Biden in November.

"The court is in an ethical crisis of its own making, and Justice Alito and the rest of the court should be doing everything in their power to regain public trust," said Durbin. "Supreme Court justices should be held to the highest ethical standards, not the lowest."

The senator added that the latest reporting offers new proof that Congress must pass the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which would create an enforceable code of conduct for the high court.

Indivisible co-executive director Ezra Levin applauded Durbin's call and said the news about Alito's flag "just confirms what we already knew: that the Supreme Court is stacked with far-right, partisan justices intent on using the bench to institutionalize MAGA extremism."

"This behavior is disqualifying for a Supreme Court justice," said Levin. "Alito is not an impartial arbiter of the law, especially when Donald Trump is involved. His brazen actions underscore the urgent need for increased congressional oversight of the court as well as structural reforms to restore its legitimacy."

Levin also called on Durbin to use his committee leadership position to "rigorously investigate corruption on the court and lead efforts to expand the court to unrig the MAGA supermajority."

Devin Ombres, senior director for courts and legal policy at the Center for American Progress, said Alito's display of the flag was a "matter-of-fact admission of his partisan sympathy with Donald Trump's 'Stop the Steal' movement, which led to the violent insurrection on January 6."

"His pathetic excuse that his wife hung the flag as part of a political dispute with a neighbor is even more damning because he's admitting it was a partisan act," said Ombres. "It's unacceptable that Alito now sits in judgment of whether Trump's actions deserve the imprimatur of presidential immunity. Chief Justice John Roberts and the other justices must demand Alito's recusal from any case related to the January 6 insurrection. If Alito had any sense of propriety or humility, he would resign."

Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.