Calls for Justice Alito recusal from Jan. 6 cases over upside-down flag

Senate Judiciary Committee Chair Dick Durbin (D-Ill.) called on Justice Samuel Alito to recuse himself from all cases related to the 2020 election and Jan. 6, 2021, after it was reported an upside-down American flag was flown outside his home in the days surrounding the attack. 

According to The New York Times, an upside-down version of the flag was flown outside the Alitos home in Alexandria, Va., on Jan. 17, 2021, and potentially for several days during that time. The justice said in a statement that he has “no involvement whatsoever in flying the flag” and said his wife, Martha-Ann, hung the flag as part of a dispute with neighbors. 

However, the news comes as the court is set to rule on two key Jan. 6-related cases, including whether former President Trump has immunity from prosecution. Durbin said Alito should step back during those cases and play no role in those rulings. 

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

“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,” he added.

“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 continued, saying it is another reason for Congress to pass legislation to create a code of conduct for justices. “Supreme Court justices should be held to the highest ethical standards, not the lowest.”

The upside-down flag has long been known as an SOS signal, but it has been used increasingly in the political universe in recent years, especially on the right after Trump’s loss, and it gained steam among his supporters as a symbol to “stop the steal.” 

The Supreme Court’s ethics code says justices should not make political statements, in order to preserve their impartiality on matters that arrive before the court.

Alito is not the only justice to have faced questions about whether he should weigh in on Jan. 6-related cases. Justice Clarence Thomas faced calls for his recusal over his wife, Virginia, and her involvement in the effort to overturn the 2020 election result, but he has declined to do so. 

This is also the latest in a lengthy back and forth between Alito and Durbin, the No. 2 Senate Democrat, who has sought to institute a new ethics code for justices after revelations of multiple instances where some, headlined by Thomas and Alito, have received lavish gifts and vacations, among other things, from wealthy donors and benefactors. 

The court has pushed back heavily on this possibility, saying Congress has no standing to implement rules on justices.