Alito flag controversies leave Democrats seeing Supreme Court in crisis

Senate Democrats say the new revelation that an “Appeal to Heaven” flag, a symbol adopted by Jan. 6 protesters, was flying at Justice Samuel Alito’s beach house is the latest worrying sign that the conservative-leaning Supreme Court is pushing an “out of control” and “partisan” agenda.

Democrats say it’s the latest sign that Justice Alito and another conservative justice, Clarence Thomas, have ignored decorum and judicial ethics, prioritizing personal views and friendships over a sense of obligation to avoid the appearance of bias or political favoritism.

“The Supreme Court majority is out of control,” said Sen. Mazie Hirono (D-Hawaii), a member of the Senate Judiciary Committee, echoing sentiments from other Democrats.

Democrats argue that the latest evidence of Justice Alito’s personal political views comes from explosive reporting published by ProPublica last year alleging that Justices Alito and Thomas had received tens of thousands of dollars in gifts from wealthy conservatives who have direct dealings with the Supreme Court or who stand to benefit more generally from the Court’s decisions.

“There is tremendous frustration over court misconduct,” said Sen. Jeff Merkley (D-Ore.), who met with constituents in nine counties over the weekend.

“Compared to 20 years ago, you hear less about this issue. There was a sense that the courts were above politics and that they were calling balls and strikes, and that’s completely gone,” he said. “That’s been really highlighted by recent events.”

A New York Times report on Thursday that a white flag with a green pine tree on it, a symbol of a Christian-spirited government, would fly outside Gov. Alito’s vacation home in 2023, sparked fresh anxiety among Democrats.

These Democrats see the Supreme Court as becoming increasingly overtly political.

The news came just days after The Times reported that an upside-down flag, a symbol of the “Stop the Steal” movement, had been hung in Alito’s home after the 2020 election. The report prompted angry Democrats to call for Alito to be removed from the Supreme Court’s pending decision on whether Trump should be immune from federal prosecution.

Merkley said the reports about the flag would spur calls for reform of the Supreme Court, either by adding more justices or replacing justices to maintain the court’s ideological balance. He also noted that the court did not adopt a binding ethics code after reports emerged that Justices Alito and Thomas had received large gifts from wealthy conservative benefactors.

“Is political momentum building for court reform? Of course it is,” he said.

News of the “Appeal to Heaven” flag reached some senators on the same day that the Supreme Court ruled 6-3 to allow South Carolina to uphold its congressional districts after a lower court had found them to be unconstitutional and racially discriminatory.

Alito told the Times that his wife had put up an upside-down American flag on their lawn after an argument with a neighbor who had displayed anti-Trump signs on their property.

But news that pro-Trump protesters waved “Appeal to Heaven” flags on the east side of the Capitol on the same day they overpowered Capitol Police to block the certification of President Biden’s electoral victory has Democrats wondering whether the upside-down flag incident at Alito’s home was a one-off incident.

“The first time the American flag went into distress mode [Alito] “It was dismissed as a random inattention by an emotional wife following a confrontation with a neighbor. The second incident certainly shows a pattern,” said Senate Judiciary Committee Chairman Dick Durbin (D-Ill.).

“This is not an accidental inadvertence. This is a conscious decision by the Alito family to promote political sentiment. This does the Supreme Court little favor, and he should accept his responsibility to recuse himself from cases involving the Trump Administration,” Durbin said, referring to an appeal the Supreme Court is currently considering about whether Trump should be immune from prosecution for any crimes related to his official duties.

Durbin called on Alito to resign last week after learning that an upside-down flag was flying at Alito’s home.

He argued Thursday that a second flag case involving Alito requires congressional action and that a Supreme Court ethics bill should be considered by the Senate this year.

“It’s a must,” he said. “It should be called out. At the very least, there should be an ethical standard and a veto standard.”

Durbin is pushing for a vote on the Supreme Court Ethics, Challenge and Transparency Act, which would require Supreme Court justices to adopt a binding code of conduct and create a mechanism for investigating alleged violations of that code or other laws.

“It’s really awful.”

Sen. Tina Smith (D-Minn.) called the recent flag incident “truly awful.”

“His responsibility as a Supreme Court justice is to make decisions without fear or favoritism and without showing partiality. But he’s flying a flag that clearly tells anyone that he believes the election was stolen. He should resign immediately,” she said. “We have to look at this.”

Sen. Brian Schatz (D-Hawaii) said he was concerned that Alito or his aides were appearing to impose more “religiosity” on the government by flying a flag supported by Christian nationalists.

“A Supreme Court justice has a special duty to be free from any bias, and I think he has already failed in that duty. Secondly, the Constitution says the government shall not establish any official religion,” he added.

“Not only is he comfortable with bringing religion into government, he’s comfortable with a very specific kind of religiosity, and that worries me,” Schatz said. “He’s just acting partisan. A lot of us have come to that conclusion with regret, and I don’t want to be the kind of lawmaker who’s always throwing harsh words at conservative judges, but he crossed some lines here.”

Even prominent Republican senators criticized the flying of the upside-down flag, calling it “poor judgment” and “unwise.”

“It’s not good judgment to do that. He said his wife was insulted and upset. I think that’s true, but he’s still a Supreme Court justice and people need to understand that.” [at] “We need a moment like this to reflect,” Sen. Lindsey Graham of South Carolina, the Judiciary Committee’s top Republican, told reporters on Monday.

Graham said he wasn’t too upset about the historic “Appeal to Heaven” flag, which dates back to the Revolutionary War.

Sen. Susan Collins (R-Maine) said she was unaware of reports that an “Appeal to Heaven” flag was flying at Alito’s beach house, but said it was inappropriate to fly the American flag upside down.

“I’m no expert on judicial ethics, but I don’t think it’s wise to have an upside-down American flag hanging in his home,” she said.

Some Republicans, notably Senate Minority Leader Mitch McConnell (R-Ky.), have called on Democrats to stop criticizing the Supreme Court and have joined Justice Alito’s defense.

Asked about an upside-down flag flying at Justice Alito’s home, McConnell told reporters on Tuesday, “It seems to me like a constant, week-by-week attack on the Supreme Court, so I’m not going to respond to that.”

“We need to leave the Supreme Court alone and protect them from those who want to come into their neighborhoods and do them harm,” he said.