John Roberts Rejects Senators' Request To Discuss Samuel Alito’s Flag Scandal

Chief Justice John Roberts on Thursday rejected Senate Democrats’ request to meet to discuss the Supreme Court ethics firestorm surrounding Justice Samuel Alito.

“I must respectfully decline your request for a meeting,” Roberts wrote to Senate judiciary committee Chairman Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.), who chairs a subcommittee on the federal courts.

“Separation of powers concerns and the importance of preserving judicial independence counsel against such appearances,” the chief justice wrote. “Moreover, the format proposed ― a meeting with leaders of only one party who have expressed an interest in matters currently pending before the Court ― simply underscores that participating in such a meeting with be inadvisable.”

Here’s a copy of Roberts’ letter:

Supreme Court Chief Justice John Roberts told senators it
Supreme Court Chief Justice John Roberts told senators it "would be inadvisable" to meet to talk about Justice Sam Alito's ethics woes. U.S. Supreme Court

In response, Whitehouse pointed out that Roberts conveniently ignored the fact that the senators wrote to him in his capacity as chairman of the Judicial Conference, which serves as the policymaking body of the nation’s federal courts.

“It is frustrating that the Chief Justice of the United States refused to address the aspect of our letter addressed to him as chair of the Judicial Conference,” Whitehouse said in a Friday statement. “Close reading of text is an attribute of a good judge. Simply ignoring text is often a sign that there’s not a good answer.”

The Judicial Conference was created by Congress, is funded by Congress and enforces laws passed by Congress, Whitehouse said. “Even if there were a proper separation of powers argument here, which I don’t believe, it would not extend to the Conference.”

Roberts’ letter comes days after top Democrats on the Senate judiciary committee requested a meeting “as soon as possible” to discuss the need for Alito to recuse himself from cases related to the 2020 presidential election.

Recent news reports revealed that Alito flew flags at two separate residences — the “Appeal to Heaven” flag and an upside-down U.S. flag — known to be symbols of support for the insurrectionists who attacked the U.S. Capitol on Jan. 6, 2021. Since the flag incidents came to light, Democrats in both chambers have fumed about Alito, arguing that he violated the court’s code of conduct.

In his Thursday letter, Roberts also noted that Alito has already sent senators a letter laying out why he won’t recuse himself. Alito blamed his wife, Martha-Ann Alito, for raising the flags at his residences, and said that because she has the legal right to fly whatever flags she wants on their property, “there were no additional steps that I could have taken to have the flag taken down more promptly.”

With the Supreme Court chief justice refusing to meet with them and Alito refusing to recuse himself, the only real recourse Democrats have left is to subpoena Alito to appear before the Senate judiciary committee and explain himself. Durbin has this authority, but has not used it thus far.

Durbin couldn’t do this unilaterally, in any case. He’d either need the top Republican on the committee to sign off, which won’t happen, or a majority vote in the committee. It’s not clear that all 10 Democrats on the committee would votefor such an escalation, either.

A judiciary committee spokesperson last week declined to say whether Durbin is prepared to try to subpoena Alito. Instead, Durbin remains focused on continued committee investigations into justices’ ethical lapses and on trying to pass a Supreme Court ethics bill, the spokesperson said.

That bill, the Supreme Court Ethics, Recusal and Transparency Act, would require justices to adopt a binding code of conduct and improve transparency when a justice has ties to a party before the court.

It currently has next to no chance of passing either chamber of Congress.