WASHINGTON ― Top Democrats on the Senate Judiciary Committee on Friday told Supreme Court Chief Justice John Roberts they want to meet with him “as soon as possible” to ensure that Justice Samuel Alito recuses himself from cases relating to the 2020 election after two recent news reports revealed Alito flew flags at two separate residences that insurrectionists at the U.S. Capitol on Jan. 6, 2021, had also carried.
“By displaying the upside-down and ‘Appeal to Heaven’ flags outside his homes, Justice Alito actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promotes public confidence in the impartiality of the judiciary,” Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) wrote to Roberts in a new letter.
“He also created reasonable doubt about his impartiality and his ability to fairly discharge his duties in cases related to the 2020 presidential election and January 6th attack on the Capitol,” they wrote. “His recusal in these matters is both necessary and required.”
(Durbin and Whitehouse are the committee chair and the chair of the subcommittee that deals with federal courts, respectively.)
The senators also renewed their call on the Supreme Court to adopt “an enforceable code of conduct for Supreme Court justices.”
The court currently has a code of ethics, which it adopted last year and only after intense public scrutiny, but it has no teeth. Still, under that code, which the justices themselves put together, they are required to avoid the appearance of impropriety.
Here’s a copy of the senators’ new letter:
Durbin and other Democrats have been demanding the Supreme Court adopt an enforceable code of ethics for years. But they drastically stepped up their calls for action after last year’s bombshell reports by ProPublica that Alito and fellow conservative Justice Clarence Thomas had accepted lavish and undisclosed gifts from wealthy political donors for years.
Democrats have also urged passage of a bill, the Supreme Court Ethics, Recusal and Transparency Act, which would require justices to adopt a binding code of conduct and improve transparency when a justice has ties to a party or amicus before the court.
But in a polarized and narrowly divided Senate, that bill is going nowhere. And while Durbin has the authority to subpoena Alito or other Supreme Court justices to appear before the Senate Judiciary Committee to address ethics questions, he has not done that.
If Durbin were to try to subpoena Alito, he wouldn’t be able to do it unilaterally. He’d need the top Republican on the committee to sign off, which would not happen in this case, or a majority vote in the committee. It’s not clear if all 10 Democrats on the committee would vote to do this.
A Judiciary Committee spokesperson would not say if Durbin is prepared to try to subpoena Alito if he doesn’t recuse himself from cases related to the 2020 election or the insurrection. Instead, the spokesperson suggested he’s focused on taking legislative action.
“The Senate Judiciary Committee has been investigating the ethical crisis at the Court for more than a year, and that investigation continues,” said the committee spokesperson. “And Chair Durbin remains focused on ensuring the Supreme Court adopts an enforceable code of conduct, which Congress can do by passing the Supreme Court Ethics, Recusal, and Transparency Act.”