Senate Democrats are publicly challenging Supreme Court Justice Samuel Alito’s impartiality after reports emerged that an upside-down American flag flew outside his home during the days surrounding January 6, 2021, and President Biden’s inauguration. Alito, known for his conservative stance on the Court, is under intense scrutiny as the justices prepare to rule on key decisions related to the January 6 attack.
Alito has stated that he had no involvement with the flag, which symbolizes distress and has been adopted by the “stop the steal” movement claiming former President Trump did not lose the 2020 election. He explained that his wife hung the flag amid a dispute with neighbors. However, this explanation has not quelled the Democrats’ concerns, who are deeply troubled by the incident amidst an ongoing debate over judicial ethics.
Sen. Brian Schatz (D-Hawaii) expressed grave concern, saying, “Terribly, terribly alarming. To fly the flag upside down means a very specific thing. … It is not enough to just say, ‘My wife got mad.’ Consider me as alarmed as I possibly could be.” Historically, an upside-down flag has signified distress, such as a ship in trouble. Schatz added, “I never thought he was impartial, but appearing to be impartial is also important. I’d be less alarmed if he had a Trump flag. ‘Nation in distress’ is a very specific thing people do with the American flag. It’s in the U.S. flag code; it means a specific thing. He’s not merely expressing his political preference — he’s saying something that’s borderline revolutionary.”
Led by Senate Judiciary Committee Chair Dick Durbin (D-Ill.), Democrats are calling for Alito to recuse himself from upcoming rulings on January 6-related cases, notably the decision on whether Trump is immune from prosecution for his actions. However, further action seems unlikely. Durbin noted that the Judiciary panel has no plans to investigate or hold a hearing on the incident, stating that there’s “not much to be gained at this point” by doing so. The only potential recourse if Alito does not recuse himself would be impeachment, which Durbin indicated is not currently being considered.
The news has reignited long-standing Democratic grievances with Alito, particularly following his majority opinion in the Dobbs decision that overturned national abortion rights and reports of him receiving gifts and vacations from wealthy GOP donors. Sen. Debbie Stabenow (D-Mich.), the No. 3 Senate Democrat, expressed her outrage, stating, “I think that’s outrageous. I think that’s absolutely outrageous,” and further questioning his judicial impartiality. “Without a doubt,” she said. “I don’t know what to say. I find it appalling.”
Durbin has been advocating for a new ethics code for justices, following revelations that both Alito and fellow conservative Justice Clarence Thomas have accepted lavish gifts and vacations from wealthy benefactors. Thomas has also faced criticism for his wife Virginia Thomas’s involvement in efforts to overturn the 2020 election result. Despite this, he has not recused himself from January 6-related cases.
Republicans, however, are largely supporting Alito. Sen. John Cornyn (R-Texas) dismissed the Democrats’ calls for recusal as the latest form of “harassment” against conservative justices, dating back to Thomas’s confirmation hearings in 1991. Sen. Chuck Grassley (R-Iowa) echoed this sentiment, calling the recusal demands “an idiotic thing to think that has nothing to do with what’s going on with the flag.”
Some Republican senators did express discomfort with the situation. Sen. Lindsey Graham (R-S.C.) acknowledged that it wasn’t a wise decision, despite the high tensions around the Alito residence. “Emotions are apparently high in that neighborhood. But no, it’s not good judgment to do that,” Graham said. “He said his wife was insulted and got mad. I assume that to be true, but he’s still a Supreme Court justice, and people have to realize that [at] moments like that to think it through.”
Sen. Mike Rounds (R-S.D.) found the decision to hoist the upside-down flag disappointing and peculiar. “To have it happen at all was really strange. … It’s just weird,” Rounds remarked. “I would expect that he would be professional enough to where it would not cloud his judgment or his ability to make impartial decisions.” He added, “I was [disappointed]. I was, yeah. Just simply having that symbol flown in that way by anybody to me is disappointing.”
Others defended Alito’s account, emphasizing that despite his role on the court, his wife should be free to express herself. Sen. John Kennedy (R-La.) stated, “I don’t think justices should express political opinions. But Justice Alito didn’t say anything to anybody. He didn’t put the flag up, his spouse did. And I don’t think you can tell spouses that they have to forfeit their right to say what they believe.”
The controversy surrounding Justice Alito’s upside-down flag has intensified the debate over judicial impartiality and ethics. While Democrats call for recusal and express deep concern, Republicans largely defendAlito, viewing the issue as an extension of ongoing partisan battles over the judiciary.
