Democrats Call For Samuel Alito's Recusal Amid Controversy Over Second Jan. 6 Flag Reported Outside His Home

 Supreme Court Justice Samuel Alito became further embroiled in controversy Wednesday night as The New York Times reported he flew an “Appeal to Heaven” flag outside his beach house that has associations with the Jan. 6 rioters and Christian nationalism, sparking fury from Democrats who have called for the justice to recuse from Jan. 6-related cases—though Republicans have largely downplayed the reports.

 Alito flew the “Appeal to Heaven” flag outside his New Jersey beach house in summer 2023, the Times reported, citing photos and Google Street View—a flag that dates back to the American Revolution but has more recently become a symbol of Christian nationalism, and was also seen outside the Capitol on Jan. 6—after the Supreme Court justice already came under fire for reports he flew an American flag upside down in Jan. 2021, which also was associated with the “Stop the Steal” movement.

Congressional Democrats, who had already opposed Alito’s upside-down flag flying and called for him to recuse from multiple Jan. 6-related cases this term, spoke out against the new flag controversy Wednesday night, with Sen. Richard Blumenthal, D-Conn., telling MSNBC Alito “is rapidly showing himself to be unfit to serve on the United States Supreme Court” and Sen. Sheldon Whitehouse, D-R.I., asking, “How many MAGA battle flags does Alito need to fly for the Court or the Judicial Conference to see there’s a problem?”

Most Democrats called for Alito to recuse himself from Jan. 6 cases or for Chief Justice John Roberts to take action, while Rep. Alexandria Ocasio Cortez, D-N.Y., went a step further, telling MSNBC, “There should be subpoenas going out” and “there should be active investigations that are happening.”

Some Republicans have expressed displeasure over Alito’s upside-down flag flying—including Sen. Lindsey Graham, R-S.C.; Sen. John Thune, R-S.D., and Sen. Mitt Romney, R-Utah, who told CNN it was “unfortunate and we ought to take a look at it”—but have not yet commented on the latest controversy.

Most Republicans have downplayed the flag controversies, with Sen. Ted Cruz, R-Texas, claiming the uproar was “all about trying to delegitimize the court” in an interview with CNN Wednesday night.

Legal experts have also raised concerns about the flag-flying, with election law expert Rick Hasen saying while he was “uncertain” the upside-down flag necessitated Alito’s recusal, “his impartiality could be reasonably questioned here,” and former federal prosecutor Joyce Vance writing that justices have a duty not to show signs of bias, but “Justice Alito flunks the test and flunks it badly.”


“If Justice Alito does not recuse himself from the Trump immunity case and the Fischer January 6 case, he will do irreparable damage to the Supreme Court,” Rep. Dan Goldman, D-N.Y., told MSNBC Wednesday night.


The Supreme Court is poised to rule in the coming weeks on two Jan. 6-related cases this term: former President Donald Trump’s request to throw out his federal charges for trying to overturn the 2020 election, and criminal charges brought against a Jan. 6 rioter, that, if thrown out, could also affect charges against hundreds of other people who stormed the Capitol that day. The court will rule on the cases at some point before its term ends at the end of June, though it remains unclear—and unlikely—whether Alito will recuse from the cases.


If lawmakers will take any action regarding Alito’s behavior. The Senate Judiciary Committee has already been broadly investigating Supreme Court ethics, though it remains unlikely that any legislation forcing more binding ethics rules on the court will pass given Republicans’ objections to the efforts. Committee chair Sen. Dick Durbin, D-Conn., decried Alito’s latest flag controversy in a statement on Wednesday, calling the scandal “yet another example of apparent ethical misconduct by a sitting justice,” but stopped short of saying senators would escalate their actions at all, only pointing to the committee’s existing probe while calling on Alito to “immediately” recuse and on Roberts to impose a binding code of ethics on the court.


Alito did not respond to the Times’ request for comment on flying the “Appeal to Heaven” flag, but defended the previous upside-down flag flying, telling the Times he “had no involvement whatsoever in the flying of the flag” and claiming, “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” Alito has more broadly slammed criticism suggesting he flouted ethics rules, telling The Wall Street Journal in July he “marvel[s]
at all the nonsense that has been written about me in the last year.” “The traditional idea about how judges and justices should behave is they should be mute” in the face of criticism and let others defend them, Alito said. “That's just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”