A growing number of Democrats are calling on Justice Samuel A. Alito Jr. to recuse himself from cases related to Jan. 6, 2021, and are calling for new ethics rules at the Supreme Court after it was revealed that the flag flown by the Capitol rioters was flown outside Justice Alito's home.
With just weeks to go until the Supreme Court issues its decision on two key cases relating to former President Donald J. Trump's attempt to overturn the 2020 presidential election and the Jan. 6 events, lawmakers said the flag's symbolism calls into question Justice Alito's neutrality.
Senator Steve Cohen, a Tennessee Democrat who introduced the resolution of censure against Justice Alito, said in an interview Thursday that Congress needs to take a firm stance that the judge's actions violate judicial integrity.
“He's not going to resign, he's not going to recuse himself, and I don't think Justice Roberts can influence him in that respect,” he said, referring to Chief Justice John G. Roberts Jr. “So the best we can do is kind of put a scarlet letter on him.”
The protest against Justice Alito came amid concern over whether Americans will view the Supreme Court's ruling on Jan. 6 and Trump as fair, with President Biden and Trump locked in a tight race ahead of the November presidential election. Still, any legislative action is unlikely as long as Republicans hold a slim majority in the House of Representatives.
Calls for Justice Alito to resign began after The New York Times reported last week that an upside-down American flag had been flown outside his Virginia home just over a week after the riot. The American flag is a symbol of 2020 election deniers and was used by Trump supporters during the January 6 riot.
The Times reported Wednesday that another provocative symbol was flown at Trump's New Jersey resort last summer: the “Appeal to Heaven” flag, associated with the movement for a Christian government and also flown by rioters at the Capitol.
Justice Alito did not respond to questions about the beach house flag, but has said the flag at their Virginia home was put up by his wife during a dispute with a neighbor. A spokesman for the court did not immediately respond to a request for comment.
Senator Richard J. Durbin, Democrat of Illinois and chairman of the Judiciary Committee, said Justice Alito should recuse himself from cases involving the 2020 election and its aftermath.
“In the interest of our country and the Court, Justice Alito should immediately recuse himself from cases related to the 2020 election and the January 6th insurrection,” Durbin said after the latest report. “The Chief Justice must understand how damaging this is to the Court and establish an immediately enforceable code of conduct.”
So far, Republican lawmakers have not joined in calling for his resignation, but some have said it was a poor decision to display the flag in public view.
Sens. Lindsey Graham of South Carolina and Bill Cassidy of Louisiana, the ranking members of the Senate Judiciary Committee, both questioned the judge's decision-making and acknowledged that flying the flag upside down invited scrutiny.
And Democrats in Congress are using the revelations to drum up support for legislation that would require Supreme Court justices to adopt a binding code of conduct and create a mechanism for investigating possible violations.
Such laws would go beyond the ethics rules adopted by the Supreme Court last year that require judges to recuse themselves from deciding cases in which their impartiality is in question.
More than 30 Democrats wrote a letter last week urging Justice Alito to recuse himself from election-related cases, and another group of Democrats, including Representatives Adam B. Schiff (D-Calif.) and Hank Johnson (D-Ga.) on the House Judiciary Committee, announced the creation of a task force to advance legislation.
Johnson's office announced Thursday that he and other senators will send a second letter to Justice Alito on Friday calling for his resignation in response to the New York Times report.
“The American people are rapidly losing confidence in the Supreme Court, and this is dangerous to our democracy,” Johnson said in an emailed statement. “As it becomes more and more clear that Supreme Court justices are publicly endorsing candidates and supporting efforts to overturn a lawful election, the rule of law is at risk.”
Judicial ethics experts and former federal judges say the flag could be interpreted as a disparaging political statement for a Supreme Court preparing to issue a potentially divisive opinion that could directly affect the 2024 election.
“This reflects not just unfairness, but the impunity of this court,” said Nancy Gartner, a lecturer at Harvard Law School and a former federal judge. “The public's concerns about their unfairness do not seem to matter to them.”
Matthias Schwartz Contributed report.