Dem Senators Demand Meeting with Chief Justice Roberts over Flag Furor

Supreme Court Justice Samuel Alito is a “threat to our democracy” and maybe even the clearly biased “prince of darkness” who has sympathized with insurrectionists and publicly advocated for the “movement to overturn a lawful election.”

Those are just some of the claims by elected Democrats and left-wing activists who have jumped at the opportunity this week to dress down Alito, to run down the court’s legitimacy, and to call for the justice’s recusal from a couple of January 6-related cases.

The chorus of voices calling for Alito’s recusal has grown in response to recent New York Times reports that revealed that an upside-down American flag flew briefly in front of the Alito-family home in mid-January 2021, and that the Alitos flew a relatively obscure “Appeal to Heaven” flag at their New Jersey vacation house last summer.

Democrats and mainstream news outlets, including the Times, have painted the two flags as obvious symbols of the “Stop the Steal” movement that supported former president’s Donald Trump’s stolen election claims in 2020 — though the evidence that they were really well-known symbols of the movement appears tenuous.

On Thursday, Democratic Senators Richard Durbin of Illinois and Sheldon Whitehouse of Rhode Island wrote a letter to Chief Justice John Roberts urging him to take steps to ensure that Alito recuses himself from cases involving the January  6 rioters, including a case involving Trump’s claim that he is immune from criminal prosecution for official acts he committed as president. “His recusal in these matters is both necessary and required,” the senators wrote.

They also requested a meeting with Roberts to discuss the court’s “ethics crisis.”

“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,” the letter reads.

Despite the shaky foundations for the charge that the “Appeal to Heaven” flag and the upside-down American flag are well-known symbols of the hard right, several other left-wing partisans have also cited the Times stories to call for Alito’s recusal or impeachment.

Congressman Hank Johnson (D., Ga.) in a statement to the Times alleged that Alito is a pro-Trump partisan who “has publicly advocated for a particular candidate and for the movement to overturn a lawful election.” Johnson is one of 45 House Democrats behind a letter calling for Alito to recuse himself from the January 6-related cases.

“Reasonable people will doubt that you can be impartial in deciding whether Mr. Trump should face criminal prosecution for his actions arising from the ‘Stop the Steal’ movement,” the letter to Alito says, calling it “incontrovertible” that the upside-down American flag was a symbol of the movement.

In an interview on MSNBC this week, Congressman Alexandria Ocasio-Cortez (D., N.Y.) claimed that Alito “has identified himself with the same people who raided the Capitol on January 6 and is now going to be presiding over court cases that have deep implications over the participants of that rally.” She called it a “threat to our democracy,” and added that “Democrats have a responsibility for defending our democracy.”

Congressman Adam Schiff (D., Calif.) said on X that Alito’s decision to fly the “Appeal to Heaven” flag was “another demonstration of his clear bias.”

Congressman Jamie Raskin used the flap over the upside-down flag as campaign fodder, calling for voters to “set America right side up in November.”

Some Democrats used the controversy to take aim at the Supreme Court generally. Senator Mazie Hirono (D., Ha.) said that the court’s conservative majority is “out of control,” according to the Hill. “Frustration with the court in the sense that it is illegitimate is extremely high,” added  Senator Jeff Merkely (D., Ore.).

Laurence Tribe, a Harvard law professor and former Barack Obama legal adviser, expressed even more extreme concerns about Alito, stating in an interview with a left-wing online media outlet that Alito may deserve to be impeached for treason over the flags.

“It is settled that any judge or justice who commits high crimes and misdemeanors, and that certainly includes giving aid and comfort to an insurrection against the Constitution of the United States, which is close to treason, that any such person is subject to impeachment by the House of Representatives,” he said, noting that obviously “this House of Representatives is not going to impeach Samuel Alito.”

Still, Tribe called for the Senate to investigate and to subpoena Alito. An investigation that doesn’t include Alito’s testimony would be like “playing Hamlet without the prince,” he said.

“He is, in this scenario, the prince. Perhaps the prince of darkness,” Tribe said. “He needs to be heard from.”

Boston College history professor Heather Cox Richardson has also said that Alito’s recusal isn’t enough. “He needs to get off the bench. Resign or be impeached,” she wrote on X.

New York Times opinion writers have also weighed in. In response to the paper’s flag stories, columnist Jamelle Bouie called Alito a “genuine Republican partisan who is more than willing to share views that echo narratives aired throughout conservative media.”

Editorial-board member Jesse Wegman said the court’s conservatives, including Alito and Clarence Thomas lack “humility,” and are “making a mockery of their obligation to at least appear neutral and independent.”

Alito has acknowledged that an upside-down American flag flew temporarily in front of his home in mid-January 2021. That was after Trump had abandoned his legal challenges around the election. Alito said his wife flew it in a dispute with abusive neighbors. Some supporters of the justice say it is not clear that the upside-down flag was an obvious symbol of Trump’s movement.

The “Appeal to Heaven” flag, which features an image of a pine tree, was originally commissioned by George Washington in the late 18^th Century. It’s also not clear that it was an obvious symbol of the “Stop the Steal” movement, Alito’s supporters say. A couple of rioters flew it in front of the Capitol on January 6, though there were far more right-side-up American flags.