May 21, 2024 - Politics & Policy

Alito faces intense heat from Congress over flag controversy

Justice Samuel Alito, wearing black robes, a blue shirt and red tie, surrounded by colleagues.

Supreme Court Justice Samuel Alito during a formal group photograph on Oct. 7, 2022. Photo: Eric Lee/Bloomberg via Getty Images.

Supreme Court Justice Samuel Alito is facing blowback in Congress over reporting that an upside-down flag — a symbol of the "Stop the Steal" movement — hung outside his home in the aftermath of the Jan. 6 attack.

Why it matters: Even some Republicans are criticizing Alito, with Democrats going so far as to demand his recusal from Jan. 6-related cases and even censure.

The backdrop: A New York Times story last Thursday revealed the U.S. flag outside Alito's home was inverted on Jan. 17, 2021, less than two weeks after the Jan. 6 attack.

  • For many Trump supporters, an upside down flag represents solidarity with unfounded right-wing claims that the 2020 election was stolen from former President Trump.
  • Alito told the Times he had "no involvement whatsoever in the flying of the flag" and that it was "briefly placed" by his wife "in response to a neighbor's use of objectionable and personally insulting language on yard signs."

Driving the news: Rep. Steve Cohen (D-Tenn.), a member of the House Judiciary Committee, introduced a five-page resolution to censure Alito on Tuesday.

  • The measure accuses Alito of "calling the impartiality of the Supreme Court of the United States into question by continuing to participate in cases in which his prior public conduct could be reasonably interpreted to demonstrate bias."
  • 45 House Democrats also signed onto a letter to Alito on Tuesday urging him to recuse himself from several Jan. 6-related cases before the Supreme Court.

What they're saying: "It's just a classic context for recusal, you know, the Alito homestead put up a very aggressive political sign against the incoming administration and in defense of MAGA culture," said Rep. Jamie Raskin (D-Md.), a former member of the Jan. 6 committee.

  • Raskin and Rep. Bennie Thompson (D-Miss.), the former Jan. 6 committee chair, both said the incident is evidence of the need for Supreme Court ethics legislation.
  • "I can see no better justification for those standards than this flag situation ... right now the court is not being held in high regard by a lot of people. And that's so unfortunate," said Thompson.
  • A Supreme Court spokesperson did not immediately respond to a request for comment on this story.

Zoom out: It's an escalation of the already intense conflict between conservative justices and congressional Democrats in recent years that has raged over Jan. 6 and financial ethics.

  • Justice Clarence Thomas faced similar calls for recusal, censure and even impeachment from Democrats in 2022 over his wife Virginia "Ginni" Thomas' extensive involvement in efforts to overturn the 2020 election.
  • Alito and Thomas have also both faced heated scrutiny from Democratic lawmakers over lavish gifts they received from conservative billionaires.

Reality check: Any Supreme Court-related legislation is likely dead on arrival in both the Republican-controlled House and the Senate, where substantial bipartisan support is needed on most legislation.

  • Senate Minority Leader Mitch McConnell (R-Ky.), a champion of conservative jurists, defended the flag controversy at a press conference on Tuesday, decrying "non-stop attacks on the Supreme Court."
  • "We need to leave the Supreme Court alone, protect them from people who went into their neighborhoods who tried to do them harm, look out for the Supreme Court," he added.

The bottom line: Rep. Glenn Ivey (D-Md.), who signed the letter calling for Alito's recusal, told Axios he and other signers are "not holding our breath."

  • He added, "But I think we have to make the effort. We have to keep raising the issue about making sure that they stay on top of the ethics issues."

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