Washington — Reports of two different flags being flown outside Justice Samuel Alito’s home have ignited a political firestorm and revived 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 to call for justice. to recuse himself from cases involving former President Donald Trump and the January 6, 2021 attack on the Capitol.
Alito, his wife and the two flags
The criticism of Alito follows a pair of New York Times reports that showed an upside-down American flag flying outside his Virginia home in mid-January 2021, and an “Appeal to Heaven” flag displayed outside his New Jersey vacation home in July and September 2023.
Both types of flags were carried by rioters who breached the US Capitol on January 6, 2021, prompting Democrats to denounce their presence outside Alito’s homes.
Government exhibition
The judge told the New York Times that he had “no involvement whatsoever in raising the flag” outside his Virginia home in early 2021 and told the Times in a statement that the flag was “briefly placed by Mrs. Alito in response to a use of offensive and personally insulting language by neighbors on yard signs.” The Supreme Court did not respond to a request for comment on the ‘Appeal to Heaven’ flag.
An inverted American flag has been used to indicate distress and, according to the United States Code, “shall never be displayed with the union lowered, except as a signal of dire distress in cases 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. According to a 2006 congressional report, the flag was often seen “at sea as the flag of the cruisers ordered by General Washington.” The phrase “an appeal to heaven” was used by the 17th century philosopher John Locke, who wrote in his Second Treatise of Government that “wherever the body of the people, or any individual man, is deprived of his right, or is under the exercise of a power without right, and has no appeal on earth, they there have liberty to appeal to heaven, whenever they judge the cause of sufficient moment.”
It has been linked to Christian nationalism in recent years.
Democrats call for Alito’s denial of immunity cases against Trump starting January 6
Senate Judiciary Committee Chairman Dick Durbin of Illinois criticized Alito for the events and called on him to withdraw from cases before the Supreme Court involving an obstruction charge against Jan. 6 defendants and whether former President Donald Trump should be protected from criminal charges at the U.S. Supreme Court. grounds of presidential immunity.
“He cannot play fast and loose with these political symbols without compromising his own integrity,” said Durbin, a Democrat.
Durbin said he hopes the Senate will pass legislation, advanced by the judiciary last year, that would have required the Supreme Court to adopt a binding code of ethics and implement procedures to handle claims of judicial misconduct.
“It’s time for the nation’s highest court to abandon the lowest ethical standard,” he said.
The Supreme Court issued a code of conductsigned by all nine sitting judges in November, but it contains no enforcement mechanism.
Forty-five House Democrats have also called on Alito to recuse himself from any matters related to the January 6 attack or the 2020 election. They sent him a letter on Tuesday saying that even if he was not involved in showing the flag, “the fact of such a political statement in your home creates at least the appearance of improper political bias.”
While Republicans have largely defended Alito, others have questioned whether the American flag should be displayed upside down.
“It’s not wise to do that,” South Carolinian Sen. Lindsey Graham, the top Republican on the Judiciary Committee, told reporters earlier this week. ‘He said his wife was offended and became angry. I guess that’s true, but he’s still a Supreme Court justice.”
Republican Sen. Thom Tillis of North Carolina said it was “probably unwise” to have a flag with political meanings, but said other members of the Supreme Court have taken positions he disagreed with.
“If we want to be intellectually honest about it, let’s look at every case where there is even a hint of political or ideological motivation,” he told reporters.
But Senate Minority Leader Mitch McConnell said there have been “nonstop attacks” on the Supreme Court.
“We need to leave the Supreme Court alone and protect them from people who came into their neighborhoods and tried to harm them,” the Kentucky Republican said.
Flag reports emerge as the Supreme Court is set to release politically charged decisions
The revelations about the flags, which were displayed in January 2021 and the summer of 2023, according to the New York Times, come as the Supreme Court enters the final weeks of its term. The justices are poised to make decisions on a range of politically charged issues, including abortion and guns. Their rulings in two other cases could also have significant consequences for Trump.
The first involves an obstruction statute used to prosecute more than 350 suspects alleged to have participated in the Jan. 6 attack. Trump was charged with violating that law, making it a crime to “corruptly” obstruct an official proceeding, and conspiracy to obstruct an official proceeding. He has denied guilt in both counts.
If the Supreme Court limits the law’s scope and rules that it cannot be applied to the Jan. 6 attack, Trump could push for these two charges to be dismissed.
The second case concerns whether he can even face criminal charges for his alleged actions surrounding the 2020 election. Trump has argued that he is entitled to sweeping immunity for alleged official acts committed while in office, but special prosecutor Jack Smith , which brought the case against the former president, has urged the Supreme Court to dismiss Trump’s claims.
In April, the justices heard arguments in both cases and votes were cast behind closed doors shortly afterward. At this point in their terms, the justices are working on their positions, which will be released publicly in the coming weeks. Supreme Court terms typically expire at the end of June.
It seems unlikely that Alito will recuse himself from the cases involving Trump and January 6, but if he does and it is decided 5-4 with his participation, the court would deadlock 4-4. In those cases, the rulings of lower courts remain in force.
In the Jan. 6 case, that would mean that 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 the D.C. Circuit rejected Trump’s claims that he is broadly shielded from federal prosecution.
If Alito rejects calls for denial, he could choose to explain why, as he did in September when he has rejected the Democrats’ demands move aside from a tax case argued in December. Alito had participated in interviews with an editor at the Wall Street Journal and an attorney, David Rivkin, who represents the couple involved in the tax case.
“There is no valid reason for my denial in this case,” Alito wrote in a four-page statement included in a routine list of Supreme Court orders.
