WASHINGTON – Majority Whip in the Senate Dick DurbinD-Ill., said Friday that Supreme Court Judge Samuel Alito should recuse himself from cases related to the 2020 election after a new report said an upside-down American flag flew outside his home in the days after the Jan. 6, 2021 attack on the Capitol and before President Joe Biden’s inauguration.
Some Trump supporters who were present at the January 6 riot, incited by the former president Donald Trump‘s baseless claims that he won the 2020 election appear to have similarly displayed the flag around the time of the January 6 attack.
“The flying of an upside-down American flag – a symbol of the so-called ‘Stop the Steal’ movement – clearly creates the appearance of bias. Judge Alito must immediately recuse himself from cases related to the 2020 election and the January 6 insurrection,” Durbin, chairman of the Senate Judiciary Committee, said in a statement.
The Supreme Court is currently weighing two cases related to January 6: Trump’s claim of presidential immunity in his election interference case, and an appeal brought by a man prosecuted for his role on the day when a mob of Trump supporters attacked the US Capitol. The verdict will be announced at the end of June.
The New York Times reported Thursday that it had obtained photos from the period after the 2020 election and conducted interviews with Alito’s neighbors. The footage showed, the Times said, that the flag was flying upside down outside his home on January 17, 2021, three days before Biden’s inauguration.
The Supreme Court did not respond to multiple requests for comment from NBC News.
The report was the latest in a series of news stories that have raised questions about the court’s ethical standards, with Alito and fellow conservatives Judge Clarence Thomas frequent targets. Thomas has not dismissed the two Jan. 6 cases, despite the fact that his wife, conservative activist Virginia “Ginni” Thomas, supported Trump’s efforts to overturn the election results.
In 2016, liberal Justice Ruth Bader Ginsburg faced significant criticism, and later apologized, when she was critical of then-presidential candidate Trump in several media interviews, including calling him a “faker.” She did not shy away from any case involving Trump or his administration.
According to the American Flag Code, an inverted American flag is used as a symbol of distress. Oath Keeper Jason Dolan — who pleaded guilty in 2022 to crimes related to Jan. 6 — also flew an upside-down American flag outside his Florida home in January 2021. Photos taken outside the Capitol during the riot show a participant waving an upside-down flag. The Times also quoted some Twitter accounts recommending flying the flag upside down as a sign of distress after the 2020 election.
It is unclear how widely the symbol was further used in the Stop the Steal movement and whether the Alitos were aware of its possible connection to Stop the Steal.
The Times said it obtained the photos from neighbors who noticed the flag and took pictures. According to The Times report, Supreme Court officials heard about it.
In an emailed statement to the Times, Alito did not deny that the flag was flying upside down outside his home and said it was not his decision.
“I was not involved in the flag raising in any way,” Alito said. “It was briefly posted by Ms. Alito in response to a neighbor’s use of offensive and personally insulting language on yard signs.”
The Times said interviews revealed that Alito’s wife, Martha-Ann Alito, had argued with neighbors on the same block who had placed an anti-Trump sign on their lawn.
Fox News’ Shannon Bream said Alito told her the disagreement began after a neighbor placed an “F— Trump” sign on their lawn, which was within 50 feet of a school bus stop. According to Bream, Alito said that after his wife brought it up to their neighbor, the neighbor put up a sign blaming Alito’s wife for the riot.
The judge said the neighbor later addressed his wife using vulgar language, “including the c-word,” Bream said. Afterward, Alito said his wife was distraught and hung the flag upside down “for a short time.”
Stephan Gillersan expert on legal ethics at New York University School of Law, said he doubted Alito knew the relationship between the inverted flag and the “Stop the Steal” movement.
“Although Alito’s explanation for how it happened is difficult to believe, it is more credible than the view that he consciously chose to fly the flag upside down, knowing its meaning,” Gillers said. Based on what has been reported, Alito would not be required to recant, Gillers added.
The Supreme Court’s recently adopted code of ethics states that judges may not engage in political activities and that judges are expected to step aside if their impartiality could be questioned. However, the code is only self-enforcing.
Charles Geyh, a professor at Indiana University’s Maurer School of Law, said the odds of Alito withdrawing in those cases are “at or near zero.”
He added that recent research confirms that the Supreme Court’s legitimacy is declining “because the Court is seen as driven less by the rule of law than by ideological agendas.” Gillers said of Alito’s case: “This doesn’t help.”
This article was originally published on NBCNews.com
