Chief Justice Roberts declines meeting with Democratic senators on Supreme Court ethics

Chief Justice John Roberts won’t meet with Democratic senators who called for Supreme Court Justice Samuel Alito to recuse himself from cases dealing with the 2020 presidential election.

The news comes after Alito said he wouldn’t recuse himself from these cases.

Sens. Dick Durbin, D.Ill., and Sheldon Whitehouse, D-R.I., penned a letter to Roberts in the wake of media reports about two flags that were flown outside Alito’s residences. In addition to calling for Alito’s recusal, the senators wanted to meet to discuss Supreme Court ethics.

“We also renew our call for the Supreme Court to adopt an enforceable code of conduct for justices,” wrote Durbin and Whitehouse. “And we request a meeting with you as soon as possible, in your capacity as Chief Justice and as presiding officer of the Judicial Conference of the United States, to discuss additional steps to address the Supreme Court’s ethics crisis.”

The flags

The letter came after a May 16 report from The New York Times. The report stated an upside-down flag was flown on Alito’s residence in Virginia on Jan. 17, 2021.

“After the 2020 election presidential election, as some Trump supporters falsely claimed that President Joe Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American,” reported the Times.

The Washington Post reported that one of its reporters went to the Alito residence after receiving a tip about the flag in January 2021. Martha-Ann Alito reportedly told the journalist to leave and said in response to questions, “it’s an international signal of distress!”

U.S. Flag Code states, “The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.”

In an interview with Fox News, Alito said his wife spoke to his neighbors after the neighbors put a sign that said “(Expletive) Trump.” After that conversation, Alito said the neighbors “put up a sign directly attacking his wife and personally blaming her for the events that transpired on Jan. 6 at the nation’s capital.” An incident followed, Alito said, in which his wife was called a epithet and then she decided to fly the flag.

Neighbor Emily Baden told the Times that she did call Mrs. Alito the lewd epithet. “A text message and the police call — corroborated by Fairfax County authorities — indicate, however, that the name-calling took place on Feb. 15, weeks after the inverted flag was taken down,” The Times reported.

There was a second flag controversy on what’s called the “Appeal to Heaven” flag.

The flag depicts a pine tree and says “An Appeal to Heaven.” The words come from John Locke in his “Two Treatises of Government” and it was commissioned when Gen. George Washington was commander in chief of the Continental Army. The Massachusetts Council established it as the flag of the state navy in 1776. According to Forbes, part of the flag’s controversy comes from its use by members of the “Stop the Steal” movement and its use during the Capitol riot.

San Francisco had flown the flag for a number of years until this week when it was removed. Jeff Cretan, spokesperson for the city mayor, told The New York Times, “Our responsibility is to represent the values of our country and the city and county of San Francisco, and the values of our city and county aren’t aligned with those who tried to overthrow the government.”

The New York Times reported the flag was flying at the Alito in July and September 2023.

Response to the flags

In the wake of these reports, Alito has received criticism and defense from various politicians.

“I never thought he was impartial, but appearing to be impartial is also important,” Sen. Brian Schatz, D-Hawaii, told The Hill. “I’d be less alarmed if he had a Trump flag. ‘Nation in distress’ is a very specific thing people do with the American flag.”

“It’s very unfortunate and we ought to take a look at it,” said Sen. Mitt Romney, R-Utah, to media, per CNN.

Sen. Lindsey Graham, R-S.C., said it was a “mistake” to have the upside down flag. “It creates a bad image. It created a situation that we’re all talking about. So, yeah, I think it was a mistake,” Graham told CNN.

Sen. Mike Lee, R-Utah, has been vocally supportive of both the Alitos.

“Martha-Ann Alito has every right to hang whatever flag she wants. In whatever manner she wants. She is a free-citizen,” said Lee on social media. “And a freedom-loving American patriot. Her husband doesn’t speak for her. And she doesn’t speak for her husband. Why can’t the left accept that?”

Sen. Chuck Grassley, R-Iowa, told CNN the reports about the flag were the “latest attempt by the left to attack and question the Supreme Court” and he criticized calls for recusal.

Alito’s letter

Alito addressed the flags in his letter to lawmakers and said a reasonable person not motivated by politics wouldn’t think he needed to recuse himself.

“As I have stated publicly, I had nothing whatsoever to do with the flying of the flag,” said Alito. “I was not even aware of the upside-down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.”

His wife flew the flag around the time she experienced distress due to a neighborhood incident where Alito said the neighbor used a misogynistic epithet to address his wife.

Regarding the second flag, Alito said his wife “was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.”

Alito said he wasn’t familiar with the flag at the time it was being flown.

“I was not aware of any connection between that historic flag and the ‘Stop the Steal Movement,’ and neither was my wife,” said Alito. “She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.”