Democrats see Supreme Court crisis in second Alito flag controversy

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

Democrats say it’s the latest indication that Alito and Justice Clarence Thomas, another conservative on the court, have cast aside decorum and judicial ethics and have let their personal views and friendships reign over any sense of obligation to avoid the appearance of bias or political favor.  

“We have an out-of-control Supreme Court majority,” said Sen. Mazie Hirono (D-Hawaii), a member of the Senate Judiciary Committee, voicing a sentiment shared by other Democrats.

Democrats say the latest evidence of Alito’s personal political views comes on top of bombshell reports published by ProPublica last year that he and Thomas accepted tens of thousands of dollars in gifts from wealthy conservatives who either had business directly before the Supreme Court or who stood to benefit generally from the court’s decisions.

“Frustration with the court in the sense that it is illegitimate is extremely high,” said Sen. Jeff Merkley (D-Ore.), who just met with constituents in nine different counties last weekend.

“Compared to 20 years ago, you never really heard about that as an issue. There was a sense that the court’s above politics, they’re calling the balls and strikes, and that’s completely gone,” he said. “It’s been so accentuated by recent events.”

A Thursday report by The New York Times that a white flag with a green pine tree, which has become a symbol of Christian-minded government, flew outside Alito’s vacation house in 2023 sparked new alarm among Democrats.

These Democrats increasingly see the high court as becoming brazenly political.

Just days earlier, the Times had reported that an upside-down American flag — a symbol of the “Stop the Steal” movement — was displayed at Alito’s home after the 2020 election, which prompted angry Democrats to call on Alito to recuse himself from a pending Supreme Court decision about whether former President Trump should be immune from federal prosecution.

Merkley said the stories about the flags will fuel calls to reform the Supreme Court, either by expanding the number of justices or rotating justices to preserve the court’s ideological balance. He also cited the court’s failure to adopt a binding ethics code after reports of Alito and Thomas accepting lavish gifts from wealthy conservative benefactors.

“Is there increasing political momentum towards reforming the court? Absolutely yes,” he said.

News of the “Appeal to Heaven” flag hit some senators on the same day the Supreme Court handed down a 6-3 ruling to allow South Carolina to keep in place a congressional map that a lower court had deemed an unconstitutional racial gerrymander.

Alito told the Times that his wife hoisted the inverted American flag on his lawn after getting in a dispute with a neighbor who had displayed an anti-Trump sign on their property.

But news of the “Appeal to Heaven” flag, which pro-Trump protesters waved on the East Front of the Capitol on the same day they overran Capitol police to stop the certification of President Biden’s 2020 electoral victory, has Democrats doubting that the upside-down flag incident at Alito’s home was a one-off occurrence.

“The first instance of the American flag in distress mode [Alito] dismissed as a chance indiscretion by his wife who was emotional about a confrontation with a neighbor. The second one really shows a pattern,” Senate Judiciary Committee Chair Dick Durbin (D-Ill.) said.

“This is not a chance indiscretion. This is a conscious decision by the Alito family to advertise their political feelings. That doesn’t help the Supreme Court one whit, and he ought to accept the responsibility of recusing himself from cases involving the Trump administration,” Durbin said, alluding to the appeal the Supreme Court is now considering on whether Trump should be immune to prosecution for any crimes involving official acts.

Durbin called on Alito to recuse himself last week after he learned of the inverted flag flying at his home.

He said Thursday that the second flag incident demands a response by Congress and insisted that Supreme Court ethics legislation should come to the Senate floor this year.

“That is a must,” he said. “It should be called. We should at least establish an ethical standard and a standard for recusal.”

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

‘Just terrible’

Sen. Tina Smith (D-Minn.) called the latest flag incident “just terrible.”

“His responsibility as a Supreme Court justice is to be able to make decisions without fear or favor, with no favoritism. And yet he’s flying flags that clearly are signaling to somebody that he thinks the election was stolen. He should immediately recuse himself,” she said. “We have to look at this.”

Sen. Brian Schatz (D-Hawaii) said he was disturbed by the sense that Alito or someone close to him appeared to be advocating for more “religiosity” in government by flying flags embraced by Christian nationalists.

“A Supreme Court justice has a special obligation to avoid the appearance of any kind of bias, and I think he’s already failed on that count. And second, the Constitution provides that the government shall not establish any official religion,” he added.

“Not only is he comfortable with religion in government, he’s comfortable with a very specific kind of religiosity. It’s worrisome,” Schatz said. “He’s just behaving like a partisan, and a lot of us come to that conclusion with regret and don’t want to be the kinds of members of Congress that are constantly throwing barbs at conservative justices, but he’s crossed a couple of lines here.”

Even prominent Senate Republicans criticized the display of an upside-down Stars and Stripes as “not good judgment” and “unwise.”

“It’s not good judgment to do that. He said his wife was insulted and got mad. I assume that to be true, but he’s still a Supreme Court justice, and people have to realize [at] moments like that to think it through,” Sen. Lindsey Graham (S.C.), the top-ranking Republican on the Judiciary Committee, told reporters Monday.

Graham said he was less disturbed by the historical “Appeal to Heaven” flag, which dates back to the Revolutionary War.

Sen. Susan Collins (R-Maine) wasn’t aware of the report of the “Appeal to Heaven” flag at Alito’s beach house but said flying an upside-down American flag is not appropriate.

“I’m not an expert in judicial ethics, but it strikes me as unwise for the upside-down American flag to be flown at his house,” she said.

Some Republicans, notably Senate Minority Leader Mitch McConnell (Ky.), have rallied to Alito’s defense by calling on Democrats to stop criticizing the court.

Asked about the inverted flag at Alito’s home, McConnell told reporters Tuesday, “It seems to me there are just nonstop attacks on the Supreme Court, week after week after week. So I’m not going to dignify that with a response.”  

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