WASHINGTON (CN) — Amid reports that symbols used by far-right political activists have appeared outside homes owned by Supreme Court Justice Samuel Alito, two of the Senate’s top Democrats urged the high court’s chief executive Friday to take matters into his own hands.
In a letter to Chief Justice John Roberts, Senate Majority Whip Dick Durbin and Rhode Island Senator Sheldon Whitehouse repeated their demand that Alito recuse himself from any cases related to the 2020 presidential election or the Jan. 6, 2021, Capitol riot.
The lawmakers pushed Roberts, who also presides over the U.S. Judicial Conference, to “immediately take appropriate steps” to keep his fellow justice out of such litigation.
Senate Democrats, who are already scrutinizing Alito and other justices over reports of ethically questionable conduct at the high court, were further incensed last week when the New York Times reported that an upside-down American flag had flown outside Alito’s Virginia home in the days following Jan. 6.
By that time, the inverted Old Glory had become a protest symbol for Capitol rioters and the “Stop the Steal” movement, which rejected then-President-Elect Joe Biden’s victory in the 2020 election.
A separate report this week revealed that a vacation home owned by Alito had flown an “Appeal to Heaven” flag — a Revolutionary War-era battle flag that has since been coopted by right-wing activists — throughout the summer of 2023.
Alito has said that the upside-down American flag was put up by his wife, adding that she had done so in response to “objectionable and personally insulting language” on yard signs displayed by a neighbor. The justice has not explained the “Appeal to Heaven” flag that appeared at his other home.
Democrats are less than convinced by that explanation, Durbin and Whitehouse said Friday.
“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,” the senators told Roberts. They argued that the displays violated the Supreme Court’s nonbinding code of conduct adopted by the court last year and signed by all nine sitting justices.
By creating reasonable doubt of his impartiality, Alito’s conduct requires his disqualification from election-related cases, said the lawmakers.
It’s not the first time Supreme Court justices have put themselves at the center of political controversy in recent months. Alito himself reportedly failed to disclose a fishing trip bankrolled in party by conservative legal activist Leonard Leo. Similar accusations have been levied against Justice Clarence Thomas, who did not report lavish vacations and gifts paid for by wealthy benefactor and conservative megadonor Harlan Crow.
Thomas’s wife, Ginni, was also involved in efforts by the Donald Trump administration to overturn the 2020 election. The justice, however, has so far not said he would recuse from election-related cases.
Durbin and Whitehouse dinged the Supreme Court and Judicial Conference for not taking more decisive action against these transgressions.
“Although together the court and the Judicial Conference have the ability and responsibility to enforce ethics rules applicable to the justices,” they said, “it remains unclear what actions — if any — the judiciary has taken in response to allegations and reporting on ethical misconduct by Supreme Court justices.”
The senators complained that the code of conduct adopted by the Supreme Court last year has failed to address any of these issues largely because it lacks a solid enforcement mechanism. The high court and Judicial Conference also appear not to have investigated any reports of ethics violations by the justices.
Durbin and Whitehouse requested to meet with Chief Justice Roberts “as soon as possible” to discuss Alito’s recusal from future cases and demanded that he spearhead an enforceable code of conduct at the Supreme Court.
If he doesn’t follow through, the lawmakers warned, Congress will step in.
“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,” they told Roberts.
Durbin, who chairs the Senate Judiciary Committee, has long said that Congress should act to rein in the Supreme Court if they won’t self-regulate, framing the legislative push as an effort to restore public confidence in the high court.
Friday’s letter, though, marks the Illinois Democrat’s most significant action addressing reports about Alito’s flag displays — Durbin has resisted questions about holding hearings on the matter.
Meanwhile, Senate Democrats are again eyeing Whitehouse’s Supreme Court Recusal, Ethics and Transparency Act as a possible antidote for their high court woes. Durbin said this week that the measure, which passed in the Judiciary Committee last summer, was a priority for the chamber.
Calls for Supreme Court ethics reform are also growing in the House. Georgia Representative Hank Johnson last week unveiled the lower chamber’s new Court Reform Now task force, a working group he said would advocate for legislative reforms like the Senate's act.
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