Democrats demand Alito recuse himself from Trump, Jan 6 cases, citing impartiality concerns over flag scandal

Senate Democrats are demanding that Supreme Court Justice Samuel Alito recuse himself from certain cases and have called for a meeting with Chief Justice John Roberts to discuss ethics in the court after news broke that Mr Alito had flown flags used by Capitol riot participants.

Senators Sheldon Whitehouse and Senate Judiciary Committee Chair Dick Durbin requested a meeting with Mr Roberts to discuss their concerns about Mr Alito’s impartiality, CBS News reports.

Reports in The New York Times and other outlets revealed that Mr Alito had previously flown an "Appeal to Heaven" flag outside his New Jersey vacation home in the summer of 2023.

In 2021, shortly after Joe Biden took office, Mr Alito flew an upside down American flag at his home in Virginia. Under US flag code, a flag is never to be flown inverted “except as a signal of dire distress in instance of extreme danger to life or property.”

Both inverted American flags and "Appeal to Heaven" flags were carried by individuals participating in the January 6 attack on the US Capitol in 2021.

People carry an
People carry an "Appeal To Heaven" flag as they gather at Independence Mall to support President Donald Trump during a visit to the National Constitution Center to participate in the ABC News town hall, Sept. 15, 2020, in Philadelphia (AP)

The "Appeal to Heaven" flag is a Revolutionary War-era standard that some conservatives have co-opted to express their belief that the 2020 election was stolen from Donald Trump.

Mr Durbin and Mr Whitehouse sent the chief justice a letter on Friday asking him to push Mr Alito to recuse himself from cases involving the 2020 presidential election and the Capitol riot.

“By displaying the upside-down and ‘Appeal to Heaven’ flags outside his homes, Justice Alito actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promotes public confidence in the impartiality of the judiciary,” they said in their letter. “His recusal in these matters is both necessary and required.”

Two such cases are pending: Mr Trump's claim of presidential immunity, and whether or not it was appropriate for federal investigators to bring obstruction charges against all of the Capitol riot defendants.

Mr Alito has already participated in oral arguments in both cases. Regarding presidential immunity, Mr Alito made the bizarre argument that immunity would protect US democracy by providing outgoing presidents reassurance that their political rivals would not have them arrested.

Mr Durbin and Mr Whitehouse called his recusal "necessary."

In addition to forcing Mr Alito to recuse himself in future rulings, the senators also called on the court to adopt an enforceable code of conduct to "address the Supreme Court's ethics crisis."

Supreme Court Justice Samuel Alito Jr., left, and his wife Martha-Ann Alito, pay their respects at the casket of Reverend Billy Graham at the Rotunda of the U.S. Capitol Building in Washington, Feb. 28, 2018 (Copyright 2018 The Associated Press. All rights reserved.)
Supreme Court Justice Samuel Alito Jr., left, and his wife Martha-Ann Alito, pay their respects at the casket of Reverend Billy Graham at the Rotunda of the U.S. Capitol Building in Washington, Feb. 28, 2018 (Copyright 2018 The Associated Press. All rights reserved.)

"Until the court and the Judicial Conference take meaningful action to address this ongoing ethical crisis, we will continue our efforts to enact legislation to resolve this crisis," the letter said.

Mr Alito has denied flying the inverted American flag, and told the New York Times that his wife had hoisted the banner as part of an ongoing feud with a neighbor involving "objectionable and personally insulting language on yard signs."

The Supreme Court justice has not explained the "Appeal to Heaven" flag, but House Speaker Mike Johnson has him covered.

Mr Johnson brushed off the controversy, and told the Associated Press that he did not know the "Appeal to Heaven" flag was associated with Mr Trump's stolen election claims.

As Mr Johnson tells it, the flag is just a simple, wholesome reference to George Washington and the founding fathers.

An "Appeal to Heaven" flag is seen outside of Speaker of the House Mike Johnson (R-LA) office on Capitol Hill on May 23, 2024 in Washington, DC (Getty Images)

“I have always used that flag for as long as I can remember, because I was so enamored with the fact that Washington used it,” Mr Johnson said. “The 'Appeal to Heaven' flag is a critical, important part of American history. It’s something that I’ve always revered since I’ve been a young man.”

He went on to say that "people misuse our symbols all the time, it doesn't mean we don't use the symbols anymore" and called people's objection to the flag "contrived."

“It’s nonsense,” he said. “It’s part of our history. We don’t remove statues and we don’t cover up things that are so essential to who we are as a country.”

Mr Johnson is wrong. The US does remove statues, change offensive location names, and stops using flags that no longer reflect the values of American citizens.

The Speaker's Democratic colleagues in the House were not sympathetic to his line of reasoning.

House Democratic Whip Katherine Clark of Massachusetts called Justice Alito’s flag use “not just another example of extremism that has overtaken conservatism."

"This is a threat to the rule of law and a serious breach of ethics, integrity and Justice Alito’s oath of office,” she told the Associated Press. She has also called for him to recuse himself from cases involving Mr Trump and January 6, 2021.