washington – Reports of two different flags flying outside the homes of Justice Samuel Alito have sparked a political firestorm and reinvigorated attention to ethical practices on the Supreme Court as Democrats push legislation that would require the court to adopt a code of conduct binding and demand justice. to recuse himself from cases involving former President Donald Trump and the attack on the Capitol on January 6, 2021.
Alito, his wife and the two flags
The criticism of Alito follows a pair of New York Times reports that revealed an upside-down American flag flew outside his Virginia home in mid-January 2021, and an “Appeal to Heaven” flag was she showed outside her New Jersey vacation home in New Jersey. July and September 2023.
Both types of flags were carried by rioters who breached the US Capitol building on January 6, 2021, prompting Democrats to report their presence outside the Alito Houses.
Government exposure
Justice told the New York Times that she had “no involvement in the flying of the flag” outside her Virginia home in early 2021 and told the Times in a statement that she had been “briefly placed by Ms. Alito in response to a neighbor's use of objectionable and personally insulting language on yard signs.” The Supreme Court did not respond to a request for comment on the “Appeal to Heaven” flag.
An upside-down American flag has been used to indicate distress and, according to the US Code, “should never be displayed with the union downwards, except as a signal of extreme distress in cases of extreme danger for life or property.”
The “Appeal to Heaven” flag, also called the pine flag, dates back to the American Revolution and signified resistance to British colonization. The flag was often seen “at sea as the flag of the cruisers commanded by General Washington,” according to a congressional report released in 2006. The phrase “appeal to heaven” was used by the 17th-century philosopher John Locke, who wrote in his second treatise of government that “if the body of the people, or any man, be deprived of their right, or be under the exercise of a power without right, and have no recourse on earth, there they are at liberty to appeal to heaven, provided they judge the cause sufficiently.”
In recent years it has been associated with Christian nationalism.
Democrats call for Alito's recusal starting Jan. 6, Trump immunity cases
Senate Judiciary Committee Chairman Dick Durbin of Illinois criticized Alito for the episodes and asked him to recuse himself from Supreme Court cases involving an obstruction charge imposed on the Jan. 6 defendants and whether the 'former president Donald Trump should be protected from criminal prosecution on grounds of presidential immunity.
“He can't play fast and loose with these political symbols without jeopardizing his own integrity,” said Durbin, a Democrat.
Durbin said he expects the Senate to take up the legislation, advanced by the judicial court last year, that would require the Supreme Court to adopt a binding ethics code and implement procedures for handling claims of judicial misconduct.
“It's time for the highest court in the land to move away from the lowest level of ethics,” he said.
The Supreme Court issued a code of conductsigned by the nine sitting justices in November, but does not include an enforcement mechanism.
Forty-five House Democrats have also asked Alito to recuse himself from cases related to the Jan. 6 attack or the 2020 election. They sent him a letter Tuesday saying that even if he had no involvement in the 'displaying the flag, “making such a political statement in your home creates, at the very least, the appearance of undue political bias.”
While Republicans have largely defended Alito, others have questioned allowing the American flag to be displayed upside down.
“It's not good judgment to do that,” Sen. Lindsey Graham of South Carolinian, the top Republican on the Judiciary Committee, told reporters earlier this week. “He said his wife was insulted and he got angry. I guess that's true, but he's still a Supreme Court justice.”
Republican Sen. Thom Tillis of North Carolina said it was “probably not wise” to have a flag with political meanings, but said other members of the high court have taken positions he disagreed with.
“If we're going to be intellectually honest about it, we take a look at every case where there's a whiff of some sort of political or ideological motivation,” he told reporters.
But Senate Minority Leader Mitch McConnell said there have been “non-stop attacks” on the high court.
“We need to leave the Supreme Court alone, protect them from the people who came into their neighborhoods and tried to hurt them,” the Kentucky Republican said.
The flag reports come as the Supreme Court prepares to release politically charged decisions
The revelations about the flags, which the New York Times says were displayed in January 2021 and the summer of 2023, come as the Supreme Court enters the final weeks of its term. The justices are poised to rule on a host of politically charged issues, including abortion and guns. His decisions in two other cases could also have important implications for Trump.
The first involves a statute of obstruction used to prosecute more than 350 defendants who allegedly participated in the Jan. 6 bombing. Trump was charged with violating that law, which makes it a crime to “corruptly” obstruct an official proceeding, and with conspiracy to obstruct an official proceeding. He has pleaded not guilty to both charges.
If the Supreme Court limits the scope of the law and finds it inapplicable to the January 6 attack, Trump could push to have those two charges dismissed.
The second case involves whether he can even be prosecuted for his alleged actions surrounding the 2020 election. Trump has argued that he is entitled to blanket immunity for allegedly official acts performed while in office, but the special counsel Jack Smith, who filed the case against the former president, has urged the Supreme Court to reject Trump's claims.
The justices heard arguments in both cases in April and the votes were issued behind closed doors shortly thereafter. At this point in their term, the judges are working on their opinions, which will be made public in the coming weeks. Supreme Court terms usually end at the end of June.
It seems unlikely that Alito will recuse himself from the cases involving Trump and Jan. 6, but if he does and they decide 5-4 with his participation, the court would deadlock 4-4. In such cases, the judgments of the lower courts are upheld.
In the Jan. 6 case, that would mean a ruling in favor of the Justice Department from the US Court of Appeals for the D.C. Circuit would be upheld. In the immunity case, a unanimous three-judge panel of the D.C. Circuit rejected Trump's claims that he is broadly shielded from federal prosecution.
If Alito rejects calls for his recusal, he could choose to explain why, as he did in September when he rejected the demands of the Democrats depart from a tax case argued in December. Alito had participated in interviews with a Wall Street Journal editor and a lawyer, David Rivkin, who represents the couple involved in the tax case.
“There is no valid reason for my recusal in this case,” Alito wrote in a four-page statement that was included in a routine list of Supreme Court orders.
