WASHINGTON — Senate Majority Leader Dick Durbin, D-Ill., said Friday that Supreme Court Justice Samuel Alito should recuse himself from cases related to the 2020 election after a new report said that an upside-down American flag flew outside his home in the days following the Jan. 6, 2021 attack on the Capitol and before President Joe Biden’s inauguration.
Some Trump supporters who were present at the Jan. 6 riot, fueled by former President Donald Trump’s baseless claims that he had won the 2020 election, appear to have displayed the flag in a similar fashion at the time of the Jan. 6 attack.
“Flying an American flag upside down – a symbol of the so-called ‘Stop the Steal’ movement – clearly creates the appearance of prejudice. Justice Alito should immediately recuse himself from cases related to the 2020 election and the January 6th insurrection,” Durbin, chairman of the Senate Judiciary Committee, said in a statement.
The Supreme Court is currently considering two cases that concern January 6: Trump’s claim of presidential immunity in his election interference case and an appeal brought by a man prosecuted for his role on the day a crowd of Trump supporters Trump attacked the US Capitol. Decisions must be delivered by the end of June.
O New York Times reported Thursday who obtained photographs from the period after the 2020 election and conducted interviews with Alito’s neighbors. Footage showed, the Times said, that the flag flew upside down outside his home on Jan. 17, 2021, three days before Biden’s inauguration.
The Supreme Court did not respond to multiple requests for comment from NBC News.
The report was the latest in a series of news stories that have raised questions about the court’s ethical standards, with Alito and his conservative colleague, Justice Clarence Thomas, frequent targets. Thomas has not distanced himself from the two Jan. 6 cases, even though his wife, conservative activist Virginia “Ginni” Thomas, has supported Trump’s efforts to overturn the election results.
An inverted US flag is used as a danger symbol in accordance with the US flag code. Juror Jason Dolan – who pleaded guilty to crimes related to January 6, 2022 – also flew an American flag upside down outside his Florida home in January 2021. Photos taken outside the Capitol during the riot show a participant waving upside down flag. The Times also cited some Twitter accounts that recommended flying the flag upside down as a sign of distress after the 2020 election.
It is unclear to what extent the symbol was used in the Stop the Steal movement or whether the Alitos knew of the possible connection to Stop the Steal.
The Times said it obtained the photos from neighbors who noticed the flag and took photos. The Times report said high court officials had heard about it.
In a statement emailed to the Times, Alito did not deny that the flag outside his home flew upside down and said it was not his decision.
“I had no involvement in the raising of the flag,” Alito said. “It was briefly put up by Ms. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
The Times said interviews showed that Alito’s wife, Martha-Ann Alito, was in a dispute with neighbors on the same block who displayed an anti-Trump sign on their lawn.
Fox News‘ Shannon Bream said Alito told her the disagreement began after a neighbor displayed an “F— Trump” sign on his lawn, which was 50 feet from a school bus stop. According to Bream, Alito said that after his wife told the neighbor about the matter, the neighbor put up a sign blaming Alito’s wife for the insurrection.
The judge said the neighbor later addressed his wife using vulgar language, “including the C-word,” according to Bream. Afterward, Alito said his wife became distraught and hung the flag upside down “for a short period of time.”
Stephen Gillers, a judicial ethics expert at New York University School of Law, said he doubted Alito knew about the inverted flag’s connection to the “Stop the Steal” movement.
“Although Alito’s explanation of how this happened is difficult to believe, it is more credible than the opinion that he consciously chose to fly the flag upside down knowing its meaning,” Gillers said.
The Supreme Court’s recently adopted code of ethics states that judges should not engage in political activities and that judges should recuse themselves from cases if their impartiality could be questioned. The code, however, is only self-enforcing.
Charles Geyh, a professor at Indiana University Maurer School of Law, said the likelihood of Alito recusing himself in such cases “is at or near zero.”
He added that recent research confirms that the legitimacy of the Supreme Court is declining “because the Court is seen as being driven less by the rule of law than by ideological agendas.” Gillers said of Alito’s case: “That’s not helpful.”
This story originally appeared on NBCNews.com read the full story
