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Washington — Reports of two different flags flown outside of Justice Samuel Alito’s houses have ignited a political firestorm and reinvigorated a focus on ethics practices at the Supreme Court, as Democrats push legislation that would require the court to adopt a binding code of conduct and call for the justice to recuse himself from cases involving former President Donald Trump and the Jan. 6, 2021, Capitol attack.
Alito, his wife and the two flags
The criticism of Alito follows a pair of reports from the New York Times that revealed an upside down American flag flew outside his Virginia home in mid-January 2021, and an “Appeal to Heaven” flag was displayed outside his vacation home in New Jersey in July and September 2023.
Both types of flags were carried by rioters who breached the U.S. Capitol building on Jan. 6, 2021, leading Democrats to denounce their presence outside Alito’s houses.
Government exhibit
The justice told the New York Times that he had “no involvement whatsoever in the flying of the flag” outside his Virginia home in early 2021 and told the Times in a statement that it had been “briefly placed by Mrs. 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 about the “Appeal to Heaven” flag.
An upside down American flag has been used to signal distress and, according to the U.S. Code, ” should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.”
The “Appeal to Heaven” flag, also called the Pine Tree flag, dates back to the American Revolution and signified resistance to British colonization. The flag was often seen “on the seas as the ensign of the cruisers commissioned by General Washington,” according to a congressional report published in 2006. The phrase “appeal to heaven” was used by 17th-century philosopher John Locke, who wrote in his Second Treatise of Government that “where the body of the people, or any single man, is deprived of their right, or is under the exercise of a power without right, and have no appeal on earth, there they have a liberty to appeal to heaven, whenever they judge the cause of sufficient moment.”
It has in recent years become associated with Christian nationalism.
Democrats call for Alito’s recusal from Jan. 6, Trump immunity cases
Senate Judiciary Committee Chairman Dick Durbin of Illinois criticized Alito over the episodes and called for him to recuse himself from cases before the Supreme Court involving an obstruction charge levied against Jan. 6 defendants and whether former President Donald Trump should be shielded from criminal prosecution on the grounds of presidential immunity.
“He can’t play fast and loose with these political symbols without jeopardizing his own integrity,” Durbin, a Democrat, said.
Durbin said he hopes the Senate will take up legislation, advanced by the Judiciary panel last year, that would require the Supreme Court to adopt a binding ethics code and implement procedures to handle claims of judicial misconduct.
“It’s time for the highest court in the land to get away from the lowest standard of ethics,” he said.
The Supreme Court issued a code of conduct, signed by all nine sitting justices, in November, but it does not include an enforcement mechanism.
Forty-five House Democrats have also called on Alito to recuse himself from cases related to the Jan. 6 attack or the 2020 election. They sent a letter to him Tuesday saying that even if he had no involvement in displaying the flag, “the fact of such a political statement at your home creates, at minimum, the appearance of improper political bias.”
While Republicans have largely defended Alito, others have questioned allowing the upside down American flag to be displayed.
“It’s not good judgment to do that,” Sen. Lindsey Graham of South Carolian, the top Republican on the Judiciary Committee, told reporters earlier this week. “He said his wife was insulted and got mad. I assume that to be true, but he’s still a Supreme Court justice.”
GOP Sen. Thom Tillis of North Carolina said it was “probably unwise” to have a flag with political meanings, but said other members of the high court have taken positions that he disagreed with.
“If we’re going to be intellectually honest about it, let’s take a look at every instance where there’s a whiff of a sort of a political or ideological motivation,” he told reporters.
But Senate Minority Leader Mitch McConnell said there have been “nonstop attacks” on the high court.
“We need to leave the Supreme Court alone, protect them from people who went into their neighborhoods and tried to do them harm,” the Kentucky Republican said.
Flag reports emerge as Supreme Court poised to release politically charged decisions
The revelations about the flags, which according to the New York Times 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 hand down decisions on a slew of politically charged issues, including abortion and guns. Their rulings in two other cases could also have significant implications for Trump.
The first involves an obstruction statute used to prosecute more than 350 defendants who allegedly participated in the Jan. 6 attack. Trump was charged with violating that law, which makes it a crime to “corruptly” obstruct an official proceeding, and conspiracy to obstruct an official proceeding. He has pleaded not guilty to both counts.
If the Supreme Court limits the scope of the law and finds it cannot be applied to the Jan. 6 assault, Trump could push to have those two charges dismissed.
The second case involves whether he can even be criminally prosecuted for his alleged actions surrounding the 2020 election. Trump has argued he is entitled to sweeping immunity for allegedly official acts taken while in office, but special counsel Jack Smith, who brought 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 votes were cast behind closed doors shortly after. At this point in their term, the justices are working on their opinions, which will be announced publicly in the coming weeks. The Supreme Court’s terms typically wrap up by 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 were decided 5-4 with his participation, the court would deadlock 4-4. In those instances, lower court rulings stand.
In the Jan. 6 case, that would mean a ruling in favor of the Justice Department from the U.S. Court of Appeals for the D.C. Circuit would stand. In the immunity case, a unanimous three-judge panel of judges on the D.C. Circuit rejected Trump’s claims that he is broadly shielded from federal prosecution.
If Alito rejects the calls for his recusal, he could choose to explain why, as he did in September when he turned down Democrats’ demands to step aside from a tax case argued in December. Alito had participated in interviews with an editor at the Wall Street Journal and a lawyer, David Rivkin, who is representing 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 orders from the Supreme Court.
