Washington — Chief Justice John Roberts rejected a request from Senate Judiciary Committee Democrats for a meeting to discuss ethics issues at the Supreme Court after Justice Samuel Alito came under scrutiny for flags flown outside his homes.
Roberts said in a letter Thursday to Judiciary Committee Chairman Dick Durbin and subcommittee head Sen. Sheldon Whitehouse that outside of ceremonial events, the chief justice rarely meets with lawmakers, even in public and with members of both parties.
“Separation of powers concerns and the importance of preserving judicial independence counsel against such appearances,” the chief justice wrote. “Moreover, the format proposed — a meeting with leaders of only one party who have expressed an interest in matters currently pending before the court — simply underscores that participating in such a meeting would be inadvisable.”
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The flag controversy
Durbin and Whitehouse, both Democrats, sent a letter to Roberts last week seeking a meeting to discuss ethics issues at the Supreme Court after the New York Times revealed in a pair of reports that an upside-down flag flew outside of Alito’s Virginia home in January 2021 and an “Appeal to Heaven” flag was displayed outside his vacation house in New Jersey in the summer of 2023.
The presence of the flags led to backlash from Democrats, since both types were carried by rioters who breached the U.S. Capitol building on Jan. 6, 2021, and have become associated with the “Stop the Steal” movement.
In addition to seeking the meeting, Durbin and Whitehouse had urged Roberts to take steps to ensure Alito recused himself from cases involving former President Donald Trump and the Jan. 6, 2021, attack on the U.S. Capitol.
There are currently two cases pending before the high court that involve those issues. The first challenges prosecutors’ use of an obstruction charge levied against Jan. 6 defendants. The second involves whether Trump is entitled to sweeping immunity from federal prosecution for allegedly official acts taken while in office.
Alito told congressional Democrats in a pair of letters Wednesday that he would not step aside in the cases and reiterated that he was not involved in the flying of the flags outside his residences. The justice also wrote that the incidents did not merit his recusal under the Supreme Court’s code of conduct, which it adopted in November.
“A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that this event does not meet the applicable standard for recusal,” Alito wrote. “I am therefore duty-bound to reject your recusal request.”
Democrats had argued that the flying of the two flags created the appearance of impropriety that required him to step aside from the disputes involving the 2020 election and the Jan. 6 assault.
But Alito said in his letters that his wife, Martha-Ann Alito, was behind the flying of the flags. On the upside-down American flag, the justice said she had been “greatly distressed” at the time it was displayed because of a “very nasty neighborhood dispute” that he was not involved in.
“My wife is a private citizen, and she possesses the same First Amendment rights as every other American,” Alito continued. “She makes her own decisions, and I have always respected her right to do so.”
On the “Appeal to Heaven” flag, Alito said it was flown at their New Jersey vacation home by his wife, and neither of them were aware it had become associated with the “Stop the Steal” movement.
“As I said in reference to the other flag event, my wife is an independently minded private citizen,” Alito wrote. “She makes her own decisions, and I honor her right to do so. Our vacation home was purchased with money she inherited from her parents and is titled in her name. It is a place, away from Washington, where she should be able to relax.”
Alito has maintained since early 2021 that he was not involved in the flying of the upside-down American flag outside his Virginia residence and told a Washington Post reporter who learned of the display at the time that it stemmed from a neighborhood dispute. Martha-Ann Alito, too, told the reporter that the flag was “an international sign of distress.”
Recusal decisions are made by each individual justice, and in his letter to Durbin and Whitehouse, Roberts pointed them to Alito’s letter addressing his continued participation in election and Jan. 6-related cases.
The chief justice last fielded a request to answer lawmakers’ questions in April 2023, when Durbin requested he testify about the ethics practices at the Supreme Court.
In a letter declining the invitation to appear before the Judiciary Committee, Roberts said there have been only two prior instances of justices testifying before Congress on issues unrelated to appropriations or nominations. He told Durbin that the rarity of a chief justice’s testimony is expected, “in light of separation of powers concerns and the importance of preserving judicial independence.”
