Top Democrats have no plans to investigate reports that Supreme Court Justice Samuel Alito flew an upside-down American flag outside his home after the 2020 election. And Joe Biden there’s no point in even talking about it.
Amid growing demands from the party’s base to denounce the actions of several conservative judges and embrace court reforms, both the president and the White House have remained silent.
Biden has publicly warned that Republicans are undermining democratic norms and threatening its institutions. But he is reluctant to extend that argument to the judiciary, aides say, for fear it could be portrayed as politically motivated and undermine his broader efforts to portray himself as a champion for strengthening democratic institutions. They believe it is crucial to maintain a clear contrast with Donald Trump, who has readily attacked an independent judiciary for political gain.
“The central counter-response should come from the legislative branch, not the executive branch,” said Anthony Coley, a former senior official in Biden’s Justice Department, arguing that Congress has broad investigative power. “That’s the right place where we should be seeing aggressive enforcement, and right now they’re not getting around to that.”
On the Hill, however, Senate Judiciary Chairman Dick Durbin has resisted calls to hold a hearing on the matter. “I don’t think this will accomplish anything,” the Illinois Democrat told POLITICO of his call for Alito to appear, instead favoring the chamber to consider ethics legislation for the Supreme Court that his committee has already has adopted. Durbin sought a meeting with Chief Justice John Roberts on Friday to discuss the case.
The reluctance to engage directly with the Alito controversy has confused and alarmed some Democrats and legal reform advocates. They argue that the Supreme Court justice has not only given Biden an excellent opportunity to highlight the stakes of the election, but also that the president has a moral obligation to address the issue. It. There is a belief in some quarters of the party that Biden’s approach is outdated and ignores the ways Republicans have prioritized and politicized legal debates.
“The idea that you just brush it off and don’t take action just sends the wrong message,” said Gabe Roth, executive director of the judicial accountability organization Fix the Court. “I don’t quite understand the hands-off approach here.”
The inverted American flag is a symbol closely associated with the “Stop the Steal” movement behind the efforts to overturn the 2020 election, which ultimately sparked the January 6 insurrection. Alito also reportedly displayed a second flag at his beach house, which is also linked to the Stop the Steal campaign, actions that not only violate the judiciary’s ethics rules but also suggest support for election subversion by a judge with influence on matters related to the election and the Capitol Insurrection.
Roth and other justice reform activists have urged Democrats over the past week to loudly condemn Alito’s actions and push for a major congressional investigation, warning that giving an endorsement to justice now will affect their ability to hold the court in the will further weaken accountability in the future.
“I’m just as concerned about what’s going on with Alito [Justice Clarence] Thomas as I am with the next generation of judges,” Roth said. “It’s completely within the president’s authority to talk about legal ethics.”
Biden has long presented himself as an institutional figure reluctant to delve too deeply into Supreme Court cases. He resisted calls during the 2020 campaign to embrace major reforms, including expansion, and after his election he raised the issue by tasking a commission to make recommendations. These recommendations remained untouched.
The president has occasionally criticized the court for its legal opinions, including after the court’s ruling Dobbs decision that ended the federal right to abortion. After the Supreme Court’s conservative majority voted to effectively end affirmative action in 2023, Biden declared that “this is not a normal court.” But the White House has steered clear of the personal controversies surrounding individual judges: first reports that Thomas had received numerous financial benefits from a prominent Republican donor and now Alito’s flags.
Press Secretary Karine Jean-Pierre last week dismissed questions about Alito, telling reporters she “did not want to comment on the issues surrounding the specific actions,” including whether the Supreme Court justices “should recuse themselves.” She expressed the White House’s belief “that the American flag should be respected,” but did not go further than that. “That’s something we won’t get into,” she said. “We’re not going to comment from here.”
Biden has not raised the issue at all in his public appearances since the story about Alitos’ House flag first surfaced. In a statement, his campaign called the Supreme Court proof that “elections matter” but declined to directly address Alito’s actions.
“President Biden is proud to have appointed Judge Ketanji Brown Jackson and more than 200 federal judges to the court who will stand up for democracy and reflect the Constitution and the values of the American people,” said spokesman TJ Ducklo. “Donald Trump appointed judges who overturned the case Roo. That is the focus in November.”
The recalcitrance is in stark contrast to some members of the Democratic Party who have indicated that they believe Alito should be scrutinized — and that this would fit well with Biden’s mantra that the public (including lawmakers) needed more clarity about the erosion. of democratic institutions.
Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee, urged Durbin to demand that both Alito and Roberts appear for testimony.
“I have no illusions that Alito will appear before the Judiciary Committee, but the chief justice should feel obligated to do so,” he said in a brief interview.
House Minority Leader Hakeem Jeffries said Thursday of Alito and Thomas that they “are completely out of control.”
And Demand Justice, an advocacy group that has aggressively pushed Democrats to embrace judicial reforms, launched an ad campaign aimed at pressuring Durbin to open an oversight investigation.
“The danger is that Congress will not do everything in its power to shine a light on Alito and the court’s handling of his conduct,” said Maggie Jo Buchanan, executive director of Demand Justice. “If you don’t do that, you are really endangering our democracy.”
Aside from holding hearings on the matter, there is little that Democrats in Congress can do effectively regarding the reports surrounding Alito’s flags (the legislature has the power to impeach, but no one can imagine that it would be used). The Supreme Court is largely responsible for policing itself. The White House does not have the power to hold hearings.
But the president does enjoy the pulpit, a pulpit he often uses to argue that Trump and his allies pose a unique threat to American democracy. Biden has claimed on several occasions that Trump will not accept the outcome of the November election if he loses, and that his supporters are paving the way for another attempt to overturn the results.
To this end, Biden has urged the media to focus more on the stakes of the presidential race and to portray Trump as the leader of a movement that poses a danger to the rule of law.
“I’m honestly not asking you to take sides, but I’m asking you to accept the gravity of the moment,” Biden said. said last month during the White House Correspondents’ Dinner. “Each of us has a role to play – a serious role to ensure that democracy survives.”
It’s an admonition that Democratic lawmakers have also echoed, most recently by urging the press to increase scrutiny of Alito’s actions.
“I’m honestly surprised the press hasn’t put this on the front pages,” said Sen. Chris Murphy, who complained he had trouble finding any coverage in major newspapers. “I’m afraid that everyone is becoming numb to the corruption in the Supreme Court.”
But Murphy and others critical of the episode pushed back on the role Biden should play in reinforcing the implications of Alito’s flag-flying on the idea that the president took on any special responsibility to respond .
“I think the president has a lot to worry about,” said Murphy, who has called on the Senate to hold hearings. “We shouldn’t take instructions from the White House, we should do that ourselves.”
Still, others worry that Biden is missing an opening to demonstrate that his rhetoric about threats to democracy is not merely hypothetical. The president, they argue, has strongly advocated that voters across the spectrum prioritize the stability of America’s institutions over their personal politics in the coming elections.
Now that he gets the chance, he must clearly show why.
“This Supreme Court has truly lost the people’s confidence that it will be unbiased on issues like the presidential election, the 2020 election and possibly the upcoming election,” said Noah Bookbinder, president of the ethics watchdog Citizens for Responsibility and Ethics in Washington. “Normally I would urge restraint from the president. But this time there is a real argument that this may not be the time for restraint.”
