Calls from Democratic lawmakers and left-wing groups for Justice Samuel Alito to recuse himself from key cases over ethics violations are a “coordinated effort” to delegitimize the Supreme Court, according to experts who say the attacks on conservative justices are becoming more consistent with each passing year.
The “An Appeal to Heaven” flag, one of the foremost flags used by Patriot forces including, George Washington, during the Revolutionary War, was flown at Alito’s vacation house last year, according to a New York Times report published this week, drawing outrage from Democrats who claim it was also a key symbol during the Jan. 6 riot at the Capitol. It marked the second time in two weeks that the justice’s flag poles became a topic of controversy, and the report prompted calls from Senate Judiciary Committee Chairman Dick Durbin (D-IL) for Alito to recuse himself from cases involving former President Donald Trump and the 2020 election, all because a handful of protesters carried the Revolutionary War-era flag on Jan. 6, 2021.
Congressional Democrats and activist groups are turning up the pressure on Alito in the wake of the flag controversy. Despite pushback from legal experts and voices on the Right, Democrats and left-wing groups have sought throughout Biden’s presidency to raise questions about key Republican-appointed justices on the Supreme Court and have done so by relying on the strategy of attacking their ethics.
“The Left has been constantly attacking the court since at least March 2020 when Sen. [Chuck] Schumer [D-NY] stood in front of the court during an oral argument on an abortion case and directly threatened Justices Neil Gorsuch and Brett Kavanaugh on their vote,” Mark Paoletta, ex-general counsel for Trump’s Office of Management and Budget and a close friend of Justice Clarence Thomas and his wife, Ginni Thomas, said.
Paoletta specifically recalled that the last three years have shown a pattern of leaks or reports that elevate Supreme Court scrutiny “in the springtime, as the court nears the end of the term and big decisions will be handed down.”
In May 2022, there was the leak of the Dobbs v. Jackson Women’s Health Decision that signaled the imminent overturning of Roe v. Wade, a leak that has remained unsolved despite its damaging impact on the institution. Last year, ProPublica launched a dedicated series in the spring questioning Thomas’s ethics, specifically over gifts of vacations that billionaire Harlan Crow gave to Thomas, just before the Supreme Court struck down affirmative action.
“And now there’s the Trump cases in 2024,” Paoletta said, adding that the reporting about flags flown months ago in front of Alito’s home arrived near the end of the current term “like clockwork.”
Paoletta said the left-wing groups amplifying the attacks on conservative justices’ ethics have an agenda.
“Short term, it’s to intimidate the conservative justices and try to force a baseless recusal or to have them trim their sails on an opinion and longer term to undermine the court’s legitimacy and pack the court,” Paoletta said, likening Democrats’ calls to reduce the number of justices deciding a case to an inverse court-packing effort.
Democratic Sens. Durbin and Sheldon Whitehouse (D-RI), who oversee the federal courts in their respective roles as chairmen of the Senate Judiciary Committee and a judicial oversight subcommittee, requested a meeting with Chief Justice John Roberts as soon as possible to discuss what they called an “ethics crisis” at the Supreme Court. In a letter dated Thursday, the senators renewed calls for the high court to impose binding ethics rules and specifically urge Alito to recuse from 2020 and Jan. 6 related cases.
The decision to recuse is left up to specific justices and is not reviewable by other colleagues. The law requires recusal if a family member is involved in a case as a litigant, witness, or lawyer or has an interest that will greatly affect the decision.
Legal experts told the Washington Examiner there is nothing in the Code of Conduct for United States Judges nor the recently-adopted ethics code for the Supreme court that would result in a need for Alito to recuse himself from the case. That code was adopted to ensure justices maintain proper disclosures of gifts they receive from outside parties, but it has no binding enforcement mechanism.
“The upside-down flag does not require Alito to recuse from every 2020 election case or future election case or whatever else,” Jonathan Adler, a professor at Case Western Reserve University who specializes in environmental, administrative, and constitutional law, said.
There have also been arguably more blatant signs of personal bias from past Supreme Court justices who did not ultimately recuse from cases. For example, the late Justice Ruth Bader Ginsburg was an outspoken anti-Trump critic in 2016, calling him a “faker” and criticizing him for not releasing his tax returns. She did not recuse herself from a 2020 case involving Trump titled Trump v. Mazars, which concerned a congressional subpoena for his tax returns.
But Adler offered a pointed response to both the conduct of Alito and Ginsburg, saying that both should have worked toward limiting any appearance of partisanship even if their conduct did not meet the standard for recusal. He also conceded “it’s pretty clear” the recent concerns about Alito are part of a “continued sustained campaign to attack the integrity of conservative justices.”
Cases that Democrats such as Durbin and Whitehouse think Alito should recuse from are pivotal in the high court’s current term, and the justices have not yet handed down their decisions in them. One of the cases is Trump v. United States, which asks the justices whether Trump has any immunity from prosecution in the context of the 2020 election subversion case brought by special counsel Jack Smith. The other case involves a question of whether hundreds of Jan. 6 riot defendants were wrongfully charged under a long-standing obstruction statute when the certification of President Joe Biden’s electoral victory was briefly interrupted due to the riot.
After the initial report that an upside-down flag, a symbol associated with 2020 election skeptics, had flown briefly outside Alito’s home in 2021, the second report about the An Appeal to Heaven flag opened a deluge of scrutiny on the conservative justice. A reporter from the nonprofit outlet ProPublica posted to X, formerly known as Twitter, an image he obtained from a source who spotted the same An Appeal to Heaven symbol flown outside the home of Federalist Society Chairman Leonard Leo, who played an influential role in helping Trump name three justices during his term and is close to members of the high court.
“No surprise that creepy-billionaire-funded Court packer Leonard Leo flies the same MAGA battle flag as his minion Alito,” Whitehouse said.
An attorney for Leonard Leo scoffed at the notion that there is even a remote connection between the flag that Alito and Leo flew outside of their and the riot on Jan. 6.
“Given the venerable and respected status of the ‘An Appeal to Heaven’ flag, as the key symbol during the American Revolution that was often used by George Washington, to suggest that its use today carries some insidious connotations is to manifest profound respect for America’s heritage,” Leo’s attorney David Rivkin told the Washington Examiner.
Leo responded to the ProPublica reporter posting the flag outside of his home, saying, “As someone who lives on the water, I like naval flags, and as a history buff, I occasionally fly those and about a half dozen other early American flags.” A source familiar with the matter told the Washington Examiner there was no coordination between Alito and Leo over the flags they raised outside their homes.
Major donors to ProPublica, including the Sandler Foundation, William and Flora Hewlett Foundation, and Ford Foundation, have funded watchdogs that have called on Thomas to resign or be investigated, the Daily Caller reported.
In response to a question about allegations of coordinated campaigning against the high court, a spokesperson from ProPublica told the Washington Examiner, “Our reporter posted a newsworthy and accurate photo. We stand by our previous reporting about Leonard Leo’s connections to Justice Alito.”
Other nonprofit organizations, such as Accountable.US, an ex-project of the Arabella Advisors-managed New Venture Fund, this week raised awareness about Alito’s flag waving and amplified calls for him to recuse from cases raised by Durbin and Whitehouse. Arabella Advisors is widely considered the largest left-wing dark money consultancy empire.
“Chief Justice Roberts must take urgent action to preserve some semblance of integrity at our high court,” Accountable.US president Caroline Ciccone wrote in a statement on the same day that Durbin and Whitehouse penned their letter to Roberts.
Accountable.US gained more than $2 million in 2022 from New Venture Fund for “civil rights, social action, and advocacy,” according to financial disclosures previously reported on by the Washington Examiner. Between 2019 and 2021, Accountable.US received a staggering $8 million from the New Venture Fund, which used to sponsor the watchdog fiscally.
On Nov. 1, Accountable.US and other left-wing activist hubs called for “Clarence Thomas’s immediate resignation in the face of a growing Supreme Court corruption crisis,” according to a letter, which cited reporting from ProPublica on the conservative justice not reporting travel with Crow. The Washington Examiner reached out to Accountable.US for comment.
Meanwhile, Republicans in the Senate have broadly dismissed the issue surrounding Alito.
Sen. Mike Lee (R-UT) told the Washington Examiner that Durbin’s concerns amount to “silly, flag-based conspiracy theories.” The flag waving does not “constitute grounds for Justice Alito’s recusal, and the senator has been unable to cite a single principle of law to make his case. This is part of a coordinated effort by Democrats to bully the Supreme Court into ruling the way they want,” Lee added.
Sen. John Cornyn (R-TX) said Durbin and Whitehouse’s new letter was “more harassment.”
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Durbin’s office did not respond to multiple requests by the Washington Examiner asking for a specific line in the code of conduct for lower court and Supreme Court justices that Alito explicitly violated. But the line Democrats would most likely cite is a section of the Supreme Court’s ethics code that states: “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.”
“After President Trump’s appointment of three Justices, the Left is furious that it no longer controls the Court, as they had for decades,” Paoletta said, adding, “This is about power, not ethics.”
