After the New York Times reported on Supreme Court Justice Samuel Alito flying an upside-down flag following the January 6 insurrection, one top Senate Democrat is calling his ability to fairly adjudicate January 6 cases into question.
The Hill reported Friday that Senate Judiciary Committee Chairman Dick Durbin (D-IL) is now demanding Alito recuse himself from all January 6-related cases following a report in which he said his wife, Martha-Ann, flew the upside-down flag as part of a dispute with neighbors. Martha-Ann was reportedly upset about a neighbor in their Alexandria, Virginia community displaying a lawn sign featuring a derogatory phrase directed at former President Donald Trump.
"Flying an upside-down American flag — a symbol of the so-called ‘Stop the Steal’ movement — clearly creates the appearance of bias," Durbin told the Hill. "Justice Alito should recuse himself immediately from cases related to the 2020 election and the January 6th insurrection, including the question of the former President’s immunity in U.S. v. Donald Trump, which the Supreme Court is currently considering."
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“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 added. “Supreme Court justices should be held to the highest ethical standards, not the lowest.”
Supreme Court justices are encouraged to avoid even the appearance of bias in order to preserve the Court's reputation as a neutral interpreter of the Constitution and adherence to the rule of law. The Times reported that whether the flag issue is a violation of the Supreme Court's new self-imposed ethics guidelines isn't as clear-cut given the context of the event. But because there is no enforcement mechanism behind those ethics guidelines, it isn't clear what, if any consequences Alito will face for the flag dispute.
“It really is a question of appearances and the potential impact on public confidence in the court,” former federal judge Jeremy Fogel told the Times. “I’m on the hawkish side of most ethical questions, and I think it would be better for the court if he weren’t involved in cases arising from the 2020 election. But I’m pretty certain that [Alito] will see that differently.”
While displaying the flag upside down has been seen as a universal signal for distress, the Hill reported that the upside-down flag was co-opted by the "Stop the Steal" movement to overturn the 2020 presidential election. Justice Alito notably did not disavow the actual act of flying flag outside of his house on January 17, 2021 — less than two weeks after the January 6 insurrection and days before President Joe Biden was inaugurated — in his response to the controversy.
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"I had no involvement whatsoever in the flying of the flag,” Alito told the Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
The New York Times' Michael Barbaro, who was not involved in the article that first broke the news of the incident, noted that the conservative jurist "doesn’t deny the flag was flying upside down, doesn’t deny its meaning, doesn’t express any disapproval for it and doesn’t disavow it."
Two of the bigger January 6-related cases Alito has yet to recuse himself from include both Trump's claim of absolute immunity for official acts, and another case involving a January 6 defendant charged with "obstructing an official proceeding" — the same charge Trump was hit with in Department of Justice special counsel Jack Smith's indictment. If the Court rules in the defendant's favor, that charge against Trump could be dropped.
Click here to read the Hill's full report.
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