Chief Justice John Roberts rejected a request by two Democratic senators for a meeting to urge him to ensure that Supreme Court Justice Samuel Alito recuses himself from pending cases related to the 2020 election. Alito has faced scrutiny following reports that flags associated with former President Donald Trump’s attempts to overturn his 2020 election loss flew outside two of his homes.
Senators Dick Durbin and Sheldon Whitehouse had asked Alito to step aside in two cases—one involving Trump’s bid for immunity from prosecution and another involving an obstruction charge against a Trump supporter who participated in the January 6, 2021, attack on the U.S. Capitol. Durbin, who chairs the Senate Judiciary Committee, and Whitehouse, a committee member, sent a May 23 letter to Roberts after New York Times reports indicated that an inverted U.S. flag flew outside Alito’s Virginia home and a flag bearing the slogan “Appeal to Heaven” flew at Alito’s New Jersey vacation home.
Impartiality
The senators argued that Alito created “reasonable doubt as to his impartiality,” necessitating recusal, by allowing the display of these flags. Some Trump supporters carried such flags during the Capitol attack. The flags have become associated with the “Stop the Steal” movement based on Trump’s false claims of widespread voting fraud in the 2020 election.
In a letter to the senators, Roberts stated that sitting chief justices meet with lawmakers only on “rare occasions.” He cited “separation of powers concerns and the importance of preserving judicial independence” as reasons against such appearances. Roberts added, “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.”
A spokesperson for Durbin criticized Roberts for invoking judicial independence as a reason to reject the meeting, asserting that Durbin’s only interest is restoring the court’s credibility in the eyes of the American people.
Alito reject calls
On Wednesday, Alito, in separate letters to Democratic lawmakers including Durbin and Whitehouse, rejected calls to step aside in the cases. Alito wrote that the flag incidents did not meet the conditions for recusal adopted by the justices last year, and that he therefore had an “obligation to sit.”
Alito, a member of the court’s 6-3 conservative majority, told the lawmakers that his wife, Martha-Ann Alito, flew the flags and that he had no involvement. Alito defended her actions as an exercise of her right to free speech under the U.S. Constitution, stating, “She makes her own decisions, and I have always respected her right to do so.”
Trump, the Republican candidate challenging Democratic President Joe Biden in the November 5 U.S. election, praised Alito’s decision on Wednesday.
Some critics argued that Alito’s response highlighted the lack of a built-in enforcement mechanism in the Supreme Court’s code of conduct, adopted last year following revelations of undisclosed luxury trips and interactions with wealthy benefactors by some of the justices, which raised questions about their ethics standards. Justices decide for themselves whether to step aside from cases.
The two cases at issue have already been argued before the court, with rulings expected by the end of June. Trump has claimed presidential immunity from prosecution on federal criminal charges related to his efforts to overturn the 2020 election results. The other case is relevant to Trump because he faces the same charge contested by a Pennsylvania man involved in the January 6 riot.
