Washington — Chief Justice John Roberts has denied a request from Senate Judiciary Committee Democrats to discuss a meeting ethics issues before the Supreme Court Judge Samuel Alito came under scrutiny flags flown outside his houses.
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 .
“Concerns about the separation of powers and the importance of safeguarding judicial independence from such appearances,” the chief justice wrote. “Furthermore, the proposed format – a meeting with leaders of only one party who have expressed interest in cases currently before the court – simply underlines that participation in such a meeting would not be advisable.”
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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 Alito's Virginia home in January 2021 and an “Appeal to Heaven” flag was raised on display outside his vacation home in New Jersey in the summer of 2023.
The presence of the flags sparked a backlash from Democrats, as both types were carried by rioters who broke the rules. U.S. Capitol Building on January 6, 2021and have become associated with the 'Stop the Steal' movement.
In addition to their request for a meeting, Durbin and Whitehouse had urged Roberts to take steps to ensure Alito recuses from cases involving former President Donald Trump and the January 6, 2021 attack on the US Capitol.
There are currently two cases pending before the Supreme Court relating to these issues. The first challenges its use by prosecutors of an obstruction charge levied against defendants on January 6. The second is about whether Trump is entitled to far-reaching immunity of federal prosecution for alleged official actions while in office.
Alito told Democrats in Congress in a pair of letters on Wednesday that he would not step aside in the cases and reiterated that he was not involved in raising the flags outside his homes. The judge also wrote that the incidents did not merit his denial under the Supreme Court's code of conduct adopted in November.
“A reasonable person not motivated by political or ideological considerations or a desire to influence the outcome of cases before the Supreme Court would conclude that this event does not meet the applicable standard for denial,” Alito wrote. “I am therefore obliged to reject your request for disqualification.”
Democrats had argued that flying the two flags created the appearance of impropriety, forcing him to withdraw from the disputes surrounding the 2020 election and the Jan. 6 attack.
But Alito said in his letters that his wife, Martha-Ann Alito, was behind the flying of the flags. On the inverted American flag, the judge said she was “very disturbed” at the time it was displayed because of a “very unpleasant neighborhood dispute” in which he was not involved.
“My wife is a private citizen and she has the same First Amendment rights as any 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 to their New Jersey vacation home by his wife, and neither of them knew it was associated with the “Stop the Steal” movement.
“As I said regarding the other flag event, my wife is an independent-minded citizen,” Alito wrote. “She makes her own decisions, and I honor her right to do so. Our holiday home was bought with money she inherited from her parents and is in her name. It's a place, far away from Washington, where she should be able to live. relaxed.”
Alito has claimed since early 2021 that he was not involved in raising the inverted American flag outside his residence in Virginia and told a Washington Post reporter who heard about the show at the time that it arose from a neighborhood dispute. Martha-Ann Alito also told the reporter that the flag was “an international sign of distress.”
Decisions on denial are made by each individual judge, and in his letter to Durbin and Whitehouse, Roberts pointed them to Alito's letter describing his continued participation in elections and January 6-related matters.
The chief justice last requested to answer questions from lawmakers in April 2023, when Durbin asked him to testify about the Supreme Court's ethics practices.
In a letter declining the invitation To appear before the Judiciary Committee, Roberts said there have been only two previous examples of judges 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 concerns about the separation of powers and the importance of preserving judicial independence.”
