(NEW YORK) — The chairman of the Senate Judiciary Committee on Friday called on Supreme Court Justice Samuel Alito to recuse himself from cases related to the 2020 election after a photo of an upside-down American flag flying at his home in January 2021 was published in The New York Times.
Sen. Dick Durbin, an Illinois Democrat, said in a statement Friday that, “Flying an upside-down American flag — a symbol of the so-called ‘Stop the Steal’ movement — clearly creates the appearance of bias.”
Since a mob of then-President Donald Trump supporters attacked the U.S. Capitol riots on Jan. 6, 2021, rioters and affiliated groups have been known to fly the American flag upside-down in protest of Joe Biden’s election victory — an expression of false claims that Biden stole the election.
Durbin called on Alito to recuse himself from all cases related to the 2020 election and the Jan. 6 riot, including U.S. v. Donald Trump, in which Trump argues as a former president he is protected from criminal prosecution by “absolute immunity” for official acts while in office.
“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 said in a statement.
The cases are currently before the court and decisions are expected in the next few weeks.
Alito’s chambers has not responded to an ABC News request for comment.
In a statement to The New York Times, Alito did not dispute the image. He said he had no involvement in its flying, saying the flag was placed by his wife Martha-Ann Alito, who had been offended by a neighbor’s yard signs.
“I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to the New York 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 Times reported that the yard signs were anti-Donald Trump.
The flag was “aloft on Jan. 17, 2021,” according to the NYT report, just days before President Joe Biden’s inauguration.
ABC News has reached out to Martha-Ann Alito for comment.
Legal ethics experts, as cited by The New York Times, say this could possibly violate the spirit of the court’s ethics code as well as the recent pledge by Supreme Court justices to avoid the mere appearance of conflict or impropriety or expression of political opinion. Spouses of justices, however, are not bound by judicial ethics codes.
The Supreme Court is expected to rule on two cases regarding the Jan. 6 riots, including whether Trump has immunity for his actions during the riots. The decisions are expected to determine whether the former president can be held accountable for his alleged attempts to overturn the results of the 2020 election.
James Sample, a professor and judicial ethics expert at Hofstra Law School, told ABC News that this could present a real headache for the Supreme Court.
“Two scenarios are plausible and neither one of them is attractive: either the flag was trivial pettiness that ought to be beneath the dignity of the Court or it is was intended as meaningful symbolism in which case it is a real problem – especially in the context of Jan. 6 litigation,” Sample said. “Collectively, the scenarios amplify the need for Congress to impose meaningful ethics enforcement on a Court that steadfastly refuses to police itself.”
Durbin also pushed for the passage of the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which would require Supreme Court justices to adopt a binding code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, and require justices to explain their recusal decisions to the public.
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