Senate Democrats are waging a public battle with Supreme Court Justice Samuel Alito and are questioning his impartiality after it was revealed that an upside-down American flag flew outside his home in the days surrounding Jan. 6, 2021, and President Biden’s inauguration.
Alito, one of the Supreme Court’s leading conservatives, is facing mounting criticism over the flag as the justices are set to rule on a pair of key decisions in the coming weeks related to the Jan. 6 attack.
The longtime justice said last week that he had nothing to do with the upside-down flag, a sign of distress that has been widely used by the “stop the steal” movement that argues Trump did not lose the 2020 election. The justice said his wife hung it amid a spat with neighbors, but Democrats were dissuaded as the episode infuriated them amid an ongoing battle over ethics at the court.
“Terribly, terribly alarming,” said Sen. Brian Schatz (D-Hawaii). “To fly the flag upside-down means a very specific thing … It is not enough to just say, ‘My wife got mad.’ Consider me as alarmed as I possibly could be.”
Through the course of U.S. history, an upside-down flag has been used to show distress, such as over a ship that is in trouble.
“I never thought he was impartial, but appearing to be impartial is also important,” Schatz continued. “I’d be less alarmed if he had a Trump flag. ‘Nation in distress’ is a very specific thing people do with the American flag. It’s in the U.S. flag code, it means a specific thing. He’s not merely expressing his political preference. He’s saying something that’s borderline revolutionary.”
Democrats, led by Senate Judiciary Committee Chair Dick Durbin (Ill.), have called on Alito to recuse himself from upcoming rulings on Jan. 6-related matters, headlined by the upcoming decision on whether former President Trump is immune from prosecution over his actions.
But whether they can do anything further is unlikely. Durbin on Monday said the Judiciary panel has no plans to investigate the incident or hold a hearing on it, telling reporters that there’s “not much to be gained at this point” by doing so.
The Senate Democratic whip also noted that the only recourse if Alito does not recuse himself would be impeachment.
“And we’re not at that point at all,” Durbin said.
Nevertheless, the news set off a number of Democrats who have long been upset with Alito in recent years, especially over his majority opinion in the Dobbs decision that overturned abortion rights at the national level and over reports indicating that he has received gifts and vacations from wealthy GOP donors.
“I think that’s outrageous. I think that’s absolutely outrageous,” said Sen. Debbie Stabenow (Mich.), the No. 3 Senate Democrat, adding that the news calls into question his judicial impartiality in her mind.
“Without a doubt,” she continued. “I don’t know what to say. I find it appalling.”
Durbin has led the push for a new ethics code for justices after revelations that both Alito and fellow conservative Justice Clarence Thomas have received lavish gifts and vacations, among other things, from wealthy donors and benefactors.
Thomas also has faced criticism over the actions of his wife, Virginia Thomas, and her involvement in the effort to overturn the 2020 election result. He has declined to recuse himself from the Jan. 6-related cases the court is considering.
Across the aisle, Republicans are largely lining up behind Alito, who has been on the bench for nearly two decades and has been a leading conservative voice from that perch. Sen. John Cornyn (R-Texas) called it the latest form of “harassment” against conservative jurists that dates back to Thomas’s confirmation hearings in 1991, with others blasting the calls for recusal.
“That’s an idiotic thing to think that has nothing to do with what’s going on with the flag,” Sen. Chuck Grassley (R-Iowa) said.
Some Senate GOP members did express unease with the news, though. Sen. Lindsey Graham (R-S.C.) told reporters that it wasn’t a smart decision despite the high tensions that were percolating around the Alito residence.
“Emotions are apparently high in that neighborhood. But no, it’s not good judgment to do that,” Graham said. “He said his wife was insulted and got mad. I assume that to be true, but he’s still a Supreme Court justice, and people have to realize that [at] moments like that to think it through.”
Sen. Mike Rounds (R-S.D.) added that he was disappointed with the decision to hoist the upside-down flag and indicated that the whole situation was odd to him.
“To have it happen at all was really strange … It’s just weird,” Rounds said. “I would expect that he would be professional enough to where it would not cloud his judgment or his ability to make impartial decisions.”
“I was [disappointed]. I was, yeah,” Rounds continued. “Just simply having that symbol flown in that way by anybody to me is disappointing.”
Others took Alito’s story at face value and pressed that despite his role on the court, it shouldn’t suppress his wife’s ability to express herself.
“I don’t think justices should express political opinions,” said Sen. John Kennedy (R-La.). “But Justice Alito didn’t say anything to anybody. He didn’t put the flag up, his spouse did. And I don’t think you can tell spouses that they have to forfeit their right to say what they believe.”
