Two top Senate Democrats sent a letter on May 24 to Chief Justice John Roberts urging him to pressure Supreme Court Justice Samuel Alito to recuse himself from cases related to the 2020 election and the Jan. 6, 2021, security breach at the U.S. Capitol.
Justice Alito, a conservative, has long been targeted by Democrats, but criticism of his performance on the bench has escalated since he wrote the 2022 majority opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and returned the regulation of abortion to the states.
Democrat complaints about Justice Alito have grown since it was recently reported that an American flag flew upside-down outside his residence and an American Revolution-era “Appeal to Heaven” flag was displayed at his beach house. The upside-down American flag and the Appeal to Heaven flag were borrowed by supporters of President Donald Trump after Jan. 6 as part of the “Stop the Steal” movement to protest irregularities they claim plagued the 2020 election, as well as the decision by Congress to certify the election of President Joe Biden.
President Trump, a Republican, and President Biden, a Democrat, are set to square off again in the upcoming Nov. 5 election.
Democrats claim the flag incidents are proof that Justice Alito, 74, who was appointed in 2006 by Republican President George W. Bush, cannot be trusted to be impartial in his rulings.
The new letter from Senate Judiciary Committee chairman Dick Durbin (D-Ill.) and his subcommittee chairman Sheldon Whitehouse (D-R.I.) came after they accused Justice Alito of pro-Trump bias related to the presence of the flags.
In the U.S. House of Representatives, 45 Democrats also recently sent a letter to Justice Alito asking him to recuse himself “from any further participation in the cases of Trump v. United States, Fischer v. United States, and any other cases that may arise from the events surrounding January 6 or the 2020 election.”
Trump v. United States, heard April 25, is about whether the former chief executive enjoys immunity from prosecution for official acts that took place while he was in office.
Fischer v. United States, heard April 16, is about a former police officer who was charged under an accounting reform law after he entered the U.S. Capitol for four minutes on Jan. 6, 2021. The case is being closely watched because President Trump was charged under the same law in an election subversion case. If the court rules against the Biden administration, its decision could affect hundreds of Jan. 6-related prosecutions.
“[W]e request a meeting with you as soon as possible, in your capacity as Chief Justice and as presiding officer of the Judicial Conference of the United States, to discuss additional steps to address the Supreme Court’s ethics crisis,” the senators’ letter states.
“By displaying or permitting the display of prominent symbols of the ‘Stop the Steal’ campaign outside his homes, Justice Alito clearly created an appearance of impropriety in violation of the Code of Conduct for Justices of the Supreme Court of the United States … that all nine justices adopted last year.
“He also created reasonable doubt as to his impartiality in certain proceedings, thereby requiring his disqualification in those proceedings as established by the Code of Conduct and federal law,” the letter states.
Long before Trump supporters used it after Jan. 6 to support their cause, flying the American flag upside-down came to be known as a symbol of distress or as a protest.
The New York Times reported on a second flag incident on May 22. The media outlet published photos of an “Appeal to Heaven” flag flying last summer at Justice Alito’s beach house in Long Beach Island, New Jersey. The flag, also known as the Pine Tree flag, goes back to 1775, and was carried by Jan. 6 rioters. At press time, Justice Alito had not publicly commented on the flag at his beach house.
In August 2023, around the time the flag flew in New Jersey, the Fischer v. United States appeal was docketed at the Supreme Court.
The Appeal to Heaven flag is also displayed outside the Capitol Hill office of House Speaker Mike Johnson (R-La.). A spokesman told the newspaper that Mr. Johnson “has long appreciated the rich history of the flag, as it was first used by General George Washington during the Revolutionary War.”
The senators’ letter also criticized the Supreme Court’s Code of Conduct, saying it “has failed to redress or prevent any of these ethics violations, largely because it contains no enforcement mechanism.
“Both the Court and the Judicial Conference appear to have failed to even investigate allegations of ethics violations by Supreme Court justices, much less provide any findings or sanctions.”
Until the court and the conference “take meaningful action to address this ongoing ethical crisis, we will continue our efforts to enact legislation to resolve this crisis,” the letter stated.
Democrats are pushing Mr. Whitehouse’s proposed Supreme Court Ethics, Recusal, and Transparency Act (SCERT), which would create a system allowing members of the public to file complaints against justices for violating a code of conduct or for engaging “in conduct that undermines the integrity” of the court. It would empower a panel of lower court judges to investigate complaints against the justices and order disciplinary actions. The Senate Judiciary Committee approved the bill on a party-line vote in July 2023.
The Epoch Times has reached out for comment to Chief Justice Roberts and Justice Alito.
