Two Democratic senators are calling on Chief Justice John G. Roberts Jr. to take immediate steps to ensure that Justice Samuel A. Alito Jr. does not participate in a pair of Supreme Court cases related to the 2020 presidential election and the Jan. 6, 2021, attack on the U.S. Capitol.
The request to Roberts comes after the New York Times reported that flags associated with the 2021 attack were flown outside Alito's homes in Virginia and New Jersey.
Sens. Dick Durbin (Ill.) and Sheldon Whitehouse (R.I.), who oversee the federal courts in their respective roles as chairmen of the Senate Judiciary Committee and a judicial oversight subcommittee, requested a meeting with Roberts as soon as possible to discuss what they called an "ethics crisis" at the Supreme Court. In their letter, dated Thursday, the senators renewed calls for the high court to strengthen its ethics policy to include an enforcement mechanism.
The court and its governing body, the Judicial Conference of the United States, have the "ability and responsibility to enforce ethics rules applicable to the justices," they wrote, but "it remains unclear what actions — if any — the judiciary has taken in response to allegations and reporting on ethical misconduct by Supreme Court justices."
Roberts did not respond to a request for comment through the court's spokesperson.
The letter from the two senators adds to pressure from dozens of Democratic lawmakers who have questioned Alito's impartiality after the report of an upside-down American flag outside his home in the Washington suburbs in the days following the Capitol attack. The flag — long used as a sign of distress by the U.S. military — had become a symbol of the "Stop the Steal" movement that falsely claims the 2020 election was stolen from Donald Trump. A second flag carried by Jan. 6 rioters, which has been embraced by Christian nationalists who want to find a greater place for religion in public life, was flown outside Alito's vacation home last summer, the Times reported this week.
Republican lawmakers, including Sen. Lindsey Graham (R-S.C.), have characterized the displays as bad judgment. But they have stopped short of calling for Alito's recusal on two significant cases that will be decided in the coming weeks: whether Trump can be criminally prosecuted for his efforts to remain in power after losing to Joe Biden, and whether the Justice Department properly charged more than 300 rioters with obstructing Congress's certification of the 2020 election. The indictment against Trump includes that obstruction charge.
Alito said in a statement to the Times that the upside-down American flag flown in the days after the Jan. 6 attack was his wife's doing and in response to a neighborhood dispute. Alito told Fox News that the flag was raised after a neighbor displayed a political sign attacking Martha-Ann Alito and blaming her for the Jan. 6 riot. He has not responded to the second report of a flag dubbed "An Appeal to Heaven," which dates to the American Revolution.
Neighbors told the Washington Post that the signs left in the neighbor's yard after a protest included one that had Trump's name, preceded by a profanity, and one that said some version of, "You are complicit."
Stephen Gillers, an expert in judicial ethics at New York University, said he initially gave Alito the benefit of the doubt that the upside-down flag was not tied to the "Stop the Steal" effort. The second flag, he said, makes that coincidence no longer plausible.
Roberts must encourage Alito to recuse himself from the Trump cases and give him a deadline to do so, Gillers said Friday. He said Roberts should separately address the circumstances surrounding the flying of the flags, even if Alito does not recuse, because of the intense public interest in the upcoming court decisions that are expected to be announced by the end of June.
Gillers cited the consequences of the rulings in those cases for the November presidential election, in which Trump is the presumptive Republican nominee. He also cited "Alito's failure's to allay public suspicion with a full explanation for each flag, and the need to reverse the public's eroding confidence in the court."
"This is a rare instance when collegiality must yield to protecting the court," Gillers said.
It was not immediately clear whether Roberts will engage with the Democratic lawmakers' request. Last spring, the chief justice turned down an invitation from the Senate Judiciary Committee to testify at a hearing before lawmakers in both parties on court ethics, saying he thought it would be inappropriate to attend. He noted then that such appearances are rare in part because of separation of powers concerns and the "importance of preserving judicial independence."
Last fall, in response to other controversies over the court's ethics, the Supreme Court adopted for the first time a code of conduct that applies specifically to the nine justices. The document was praised as a first step but criticized by some legal ethics experts who noted it lacks an enforcement mechanism and said it gives justices too much discretion over recusal decisions.
The decision to not participate in a case because of perceived or actual conflict of interest is up to the individual justice and is not reviewable by colleagues. The court's new code emphasizes that recusals should be rare because each justice is needed on a nine-member court. Unlike on lower courts, there can be no replacement when a justice sits out.
Justice Clarence Thomas has separately refused to recuse himself from cases related to the 2020 election in light of revelations that his wife, Virginia "Ginni" Thomas, pressed Trump White House officials to overturn the results and claimed the election had been stolen.
