Roberts rejects Senate Democrats’ request to discuss Alito flag controversy and Supreme Court ethics

Chief Justice John Roberts on Thursday declined an invitation to meet with Democratic senators to talk about Supreme Court ethics and the controversy over flags that flew outside homes owned by Justice Samuel Alito.

Roberts’ response came in a letter to the senators a day after Alito separately wrote them and House members to reject their demands that he recuse himself from major Supreme Court cases involving former President Donald Trump and the Jan. 6 rioters because of the flags, which are like those carried by rioters at the Jan. 6, 2021, attack on the Capitol.

Senate Judiciary Chairman Dick Durbin, D-Ill., and Sen. Sheldon Whitehouse, D-R.I., a member of the Judiciary panel, had written Roberts a week ago to ask for the meeting and that Roberts take steps to ensure that Alito recuses himself from any cases before the court concerning the Jan. 6 attack or the Republican former president’s attempts to overturn his 2020 election defeat.

“I must respectfully decline your request for a meeting,” Roberts wrote.

Justices decide for themselves when to step aside from cases, Roberts noted. Alito said he concluded nothing about the flags, both of which he said were flown by his wife outside their homes in Virginia and New Jersey, required his recusal.

Last year, Roberts declined to testify at a Judiciary Committee hearing on Supreme Court ethics, and he made mention of that Thursday in saying that chief justices only rarely have met with lawmakers.

“Moreover, the format proposed — a meeting with leaders only of 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,” he wrote.

Both Alito and an another conservative justice, Clarence Thomas, have rejected calls to recuse themselves from cases related to the 2020 election, which Trump lost to Democrat Joe Biden. Thomas’ wife, Ginni, supported efforts to overturn the election results.

Public trust in the Supreme Court is at its lowest point in at least 50 years.

Durbin’s office issued a statement downplaying Roberts’ concerns. Durbin’s only interest “is restoring the credibility of the Court in the eyes of the American people,” the statement said, adding that he would press efforts to pass an enforceable ethics code for the Supreme Court.

The justices are considering two major cases related to the Capitol attack, including charges faced by the rioters and whether Trump has immunity from prosecution on election interference charges.

The New York Times reported that an inverted American flag was seen at Alito’s home in Alexandria, Virginia, less than two weeks after the attack on the Capitol. The paper also reported that an “Appeal to Heaven” flag was flown outside of the justice’s beach home in New Jersey last summer. Both flags were carried by rioters who violently stormed the Capitol in January 2021 echoing Trump’s false claims of election fraud.

Alito has said the inverted American flag was flown by his wife amid a dispute with neighbors and he had no part in it. He said she also flew the “Appeal to Heaven” flag but was unaware of its ties to the Capitol rioters.

Judicial ethics codes focus on the need for judges to be independent, avoiding political statements or opinions on matters they could be called on to decide. The Supreme Court had long gone without its own code of ethics, but it adopted one in November 2023 in the face of sustained criticism over undisclosed trips and gifts from wealthy benefactors to some justices.

The code lacks a means of enforcement, though, and the Judiciary panel approved legislation last year that would set stricter standards. But Republicans have been staunchly opposed to any efforts to tell the court what to do.