Justice Alito Urged to Recuse From Court’s Jan. 6-Related Cases

Senate Judiciary Committee Chair Dick Durbin (D-Ill.) is calling on US Supreme Court Justice Samuel Alito to recuse himself from the cases before the court that involve the 2020 election and the Jan. 6 attack on the US Capitol.

“The Court is in an ethical crisis of its own making, and Justice Alito and the rest of the Court should be doing everything in their power to regain public trust,” Durbin said in a statement on Friday.

The comments were in response to a New York Times report that an upside down American flag was seen flying outside Alito’s Alexandria, Va., home a week after supporters of former President Donald Trump stormed the US Capitol in an effort to stop the certification of the 2020 election results on Jan. 6, 2021.

Inverted American flags were used by Trump supporters as a symbol of his “Stop the Steal” campaign in which he spread false claims that President Joe Biden had stolen the 2020 election from him.

“Flying an upside-down American flag—a symbol of the so-called ‘Stop the Steal’ movement—clearly creates the appearance of bias,” Durbin said.

Alito told the Times he had “no involvement whatsoever in the flying of the flag and that “it was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Though inverted flags can be used for other forms of protest, as the Times noted, neighbors reportedly interpreted it as a political statement by the couple given the timing of its display, raising concern among some ethics experts.

The Supreme Court is expected to rule in the coming weeks on two cases related to the events on Jan. 6. One is Trump’s appeal for absolute immunity from criminal prosecution for his efforts to overturn the 2020 election. The second, is an appeal from a Jan. 6 Capitol riot defendant who is facing charges similar to those that have been brought against Trump.

Durbin said Alito should step aside from those cases and urged Congress to pass the Supreme Court Ethics, Recusal, and Transparency Act (S.359) which would require the court to create an enforceable code of conduct and a way to investigate alleged violations.

“Supreme Court justices should be held to the highest ethical standards, not the lowest,” he said.

The court adopted a code of conduct for the first time in November in response to controversies that brought new scrutiny of the justices’ friendships and financial dealings, but it was criticized by some for its lack of enforcement power.

The Supreme Court’s press office didn’t immediately respond to a request for comment.