Two leading Senate Democrats sent a letter on May 24 to Chief Justice John Roberts, urging him to ask Supreme Court Justice Samuel Alito to recuse himself from cases involving the 2020 election and the January 6, 2021, Capitol security breach.
Justice Alito, a conservative, has long been a target of Democratic criticism. However, scrutiny of his performance has intensified since he authored the 2022 majority opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and returned abortion regulation to the states.
Democratic complaints about Justice Alito have increased following reports that an American flag was flown upside-down outside his residence and an American Revolution-era “Appeal to Heaven” flag was displayed at his beach house.
These symbols were adopted by supporters of President Donald Trump after January 6 as part of the “Stop the Steal” movement, protesting alleged irregularities in the 2020 election and Congress’s decision to certify President Joe Biden’s victory.
President Trump, a Republican, and President Biden, a Democrat, are set to square off again in the upcoming Nov. 5 election.
Democrats argue that the flag incidents demonstrate that 74-year-old Justice Alito, appointed in 2006 by Republican President George W. Bush, cannot be trusted to remain impartial in his rulings.
The new letter from Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) and Subcommittee Chairman Sheldon Whitehouse (D-R.I.) followed their accusations that Justice Alito exhibited pro-Trump bias, citing the presence of the flags as evidence.
In the letter, they urged Chief Justice Roberts “to immediately take appropriate steps to ensure that Justice Alito will recuse himself” in two cases the Supreme Court is currently deliberating that affect President Trump.
In the U.S. House of Representatives, 45 Democrats recently sent a letter to Justice Alito, requesting that he recuse himself “from any further participation in Trump v. United States, Fischer v. United States, and any other cases related to the events of January 6 or the 2020 election.”
Trump v. United States, heard on April 25, addresses whether the former president is immune from prosecution for official actions taken during his time in office.
Fischer v. United States, heard on April 16, involves a former police officer charged under an accounting reform law for entering the U.S. Capitol for four minutes on January 6, 2021.
The case is closely watched because President Trump faces charges under the same law in an election subversion case. A ruling against the Biden administration could impact hundreds of prosecutions related to January 6.
“[W]e 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 senators’ letter states.
“By displaying or permitting the display of prominent symbols of the ‘Stop the Steal’ campaign outside his homes, Justice Alito clearly created an appearance of impropriety in violation of the Code of Conduct for Justices of the Supreme Court of the United States … that all nine justices adopted last year.”
“He also created reasonable doubt as to his impartiality in certain proceedings, thereby requiring his disqualification in those proceedings as established by the Code of Conduct and federal law,” the letter states.
Justice Alito has confirmed that his wife briefly flew an inverted U.S. flag outside their Virginia home 11 days after the security breach at the U.S. Capitol. The justice explained that the flag display, unrelated to national politics, grew out of a conflict with neighbors.
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