Lawmakers Dial Up Pressure on Alito to Recuse From Elections Cases

Chief Justice John Roberts leaves the Capitol after a session of the Senate impeachment trial of President Donald Trump on Capitol Hill in Washington, Jan. 29, 2020. (Erin Schaff/The New York Times)
Chief Justice John Roberts leaves the Capitol after a session of the Senate impeachment trial of President Donald Trump on Capitol Hill in Washington, Jan. 29, 2020. (Erin Schaff/The New York Times)

WASHINGTON — A growing number of Democratic lawmakers called for Justice Samuel Alito to recuse himself from cases related to Jan. 6, 2021, and demanded new ethics rules for the Supreme Court after revelations that flags carried by rioters at the Capitol were flown outside his homes.

With the Supreme Court just weeks away from issuing decisions on two major cases concerning former President Donald Trump’s efforts to overturn the 2020 election and the events of Jan. 6, lawmakers said the symbolism of the flags called into question Alito’s neutrality.

In an interview Thursday, Rep. Steve Cohen, D-Tenn. who has introduced a resolution to censure Alito, said Congress needed to take the firm position that the justice’s actions were a violation of judicial propriety.

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“He’s not going to resign, he’s not going to recuse himself, and I don’t think Justice Roberts is going to be able to influence him in that regard,” he said, referring to Chief Justice John Roberts. “So the best we can do is to kind of put a scarlet letter on him.”

The outcry over Alito comes amid fears about whether the American public will regard the court’s rulings about Jan. 6 and Trump as fair as the November election approaches, with President Joe Biden and Trump locked in a tight race. Still, the prospect of any legislative action is slim while Republicans hold a small majority in the House.

The calls for Alito’s recusal began after The New York Times reported last week that an upside-down American flag — a symbol associated with 2020 election deniers and used by supporters of Trump at the Jan. 6 riot — had been hung outside Alito’s house in Virginia just over a week after the insurrection.

Wednesday, the Times reported that another provocative symbol had been displayed at his vacation house in New Jersey last summer: the “Appeal to Heaven” flag, which is associated with the movement for a more Christian government and was also carried by rioters at the Capitol.

Alito has not responded to questions about the beach house flag, but he has said the flag at his Virginia home was raised by his wife during a clash with a neighbor. A spokesperson for the court did not immediately respond to a request for comment.

Sen. Dick Durbin, D-Ill., the chair of the Judiciary Committee, said Alito must step aside from cases involving the 2020 election and its aftermath.

“For the good of our country and the court, Alito must recuse himself immediately from cases related to the 2020 election and the Jan. 6 insurrection,” Durbin said after the latest report. “And the chief justice must see how this is damaging the court and immediately enact an enforceable code of conduct.”

So far, Republicans in Congress have stopped short of joining calls for recusal, though several have said that having the flags up for the public to see demonstrated poor judgment.

Sen. Lindsey Graham, R-S.C., the ranking member of the Senate Judiciary Committee, and Sen. Bill Cassidy, R-La., have both questioned the justice’s decision making and conceded that the display of the upside-down flag invited scrutiny.

And Democrats in Congress have seized on the revelations to drum up support for legislation that would require Supreme Court justices to adopt a binding code of conduct and create a mechanism to investigate possible violations.

Such a law would go beyond the code of ethics the court adopted last year that commits the justices to disqualifying themselves from ruling on cases in which their impartiality might reasonably be questioned.

Last week, more than three dozen Democratic members of Congress penned a letter calling on Alito to step away from the election-related cases. Another group of Democrats that included Reps. Adam Schiff of California and Hank Johnson of Georgia, both members of the House Judiciary Committee, announced the creation of a task force to advance the legislation.

Thursday, Johnson’s office said he and other members of Congress would send a second letter to Alito on Friday demanding that he recuse himself in light of the Times’ reporting.

“The public is rapidly losing faith in the Supreme Court, which is dangerous to our very democracy,” Johnson said in an emailed statement. “I fear for the rule of law when every day, it becomes more apparent that a Supreme Court justice has publicly advocated for a particular candidate and for the movement to overturn a lawful election.”

A number of judicial ethics experts and former federal judges have said the flags could be interpreted as political statements that reflect poorly on the court as it prepares to issue potentially divisive opinions that could directly affect the 2024 election.

“This does not only reflect partiality, it reflects the impunity of this court,” said Nancy Gertner, a lecturer at Harvard Law School and a former federal judge. “The public’s concerns about their partiality don’t seem to matter to them.”

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