Top Democrats are calling for Supreme Court Justice Samuel Alito to recuse himself from cases related to former President Donald Trump after reports surfaced that an inverted American flag, a symbol linked to the pro-Trump “Stop the Steal” movement, was flown outside his home in the days following the Jan. 6 Capitol riot.
According to The New York Times, the flag was seen flying on Jan. 17, 2021, three days before President Joe Biden’s inauguration. Alito told the Times: “I had no involvement whatsoever in the flying of the flag,” and said that his wife, Martha-Ann, had raised it in response to “objectionable and personally insulting” yard signs put out by their neighbors.
The report marks the latest blow to the Court as it faces heightened scrutiny over judicial ethics after a ProPublica investigation revealed that both Alito and Justice Clarence Thomas had personal relationships and financial exchanges with billionaire GOP donors. Separate reports also showed Thomas’ wife, Virginia, to be a fierce supporter of the former president.
Senate Judiciary Chair Dick Durbin (D-Ill.), who has long called for a congressionally enforced code of conduct for the Court, released a statement Friday night calling on Alito to recuse himself from cases relating to Jan. 6 and the 2020 election, reiterating a previous admonishment that “the Court is in an ethical crisis of its own making.”
“Flying an upside-down American flag — a symbol of the so-called ‘Stop the Steal’ movement — clearly creates the appearance of bias,” Durbin wrote. “Justice Alito should recuse himself immediately from cases related to the 2020 election and the January 6th insurrection, including the question of the former President’s immunity in U.S. v. Donald Trump, which the Supreme Court is currently considering.”
Other Democrats also offered fiery criticisms of Supreme Court conduct. In an interview with MSNBC Saturday morning, Rep. Jerry Nadler (D-N.Y) said in no uncertain terms that both Alito and Thomas should remove themselves from any Trump-related cases appearing before the high court.
“[Alito] should certainly recuse himself from any Jan. 6 related case, from any case relating to President Trump, because he’s associated with the Stop the Steal movement now — whether he wants to be or not,” Nadler said. “And Justice Thomas should also … recuse himself — for the same reason, because his wife was a noted protagonist in the Stop the Steal movement.”
According to Nadler, the pattern of questionable behavior “shows the necessity of an enforceable judicial code of ethics for the Supreme Court,” as well as term limits for Court appointees.
While the Court did adopt a code of conduct in November 2023 following ProPublica’s report, the set of guidelines is essentially self-enforced. The code was endorsed by all nine justices.
In a statement rebuking Alito released on Friday, House Minority Leader Hakeem Jeffries (D-N.Y.) echoed calls for congressional guardrails on “a runaway Supreme Court.”
“Samuel Alito should apologize immediately for disrespecting the American flag and sympathizing with right-wing violent insurrectionists. He must recuse himself from cases involving the 2020 election and former President Donald Trump,” Jeffries wrote. “Congress should immediately consider legislation to impose an ethical code of conduct on a runaway Supreme Court. The Constitution demands and the American people deserve more from a justice serving on the highest court in the land than baseless election denial.”
Rep. Jamie Raskin (D-Md.) reposted the Times’ report on X Friday evening, writing: “Your eyes don’t deceive you — that’s an election-denying, Big Lie ‘sign of distress’ waving on a Supreme Court justice’s lawn before Biden took office. On and off the bench, our Supreme Court is waist-deep in MAGA.”
In defense of Alito and his wife, Republican Arkansas Sen. Tom Cotton also posted the Times’ headline on X and questioned its reporting.
“This is the NYT trying to smear Mrs. Alito and incite another mob to try to intimidate justices, harass them at home, or worse. Shameful!”
In his comments on MSNBC, Nadler said that his concerns about the Supreme Court ethics extend beyond Alito or Thomas, and reflect issues pervasive among the conservative bench.
“Look at some of the other appointees of Trump too,” Nadler said. “All three of them, when asked about Roe v. Wade assured the Senate ‘that is settled law, that is settled precedent’ — they all but swore they were not going to overturn it, but of course they did at the first opportunity. So none of them have clean hands.”
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