Supreme Court Chief Justice John Roberts declined a request from Senate Democrats to discuss ethics reform amid calls for Justice Samuel Alito to recuse himself following the display of controversial flags at his residence.
In a letter to Senate Judiciary Committee Chairman Dick Durbin (D-IL) and Sen. Sheldon Whitehouse (D-RI), Roberts declined their request to meet and discuss what they called a Supreme Court “ethics crisis.” For months, the two Democrats have scrutinized the court over reports that justices had accepted gifts without disclosing them, but new reporting that Alito’s wife flew flags apparently associated with the “Stop the Steal” movement has caused Democrats to call for Alito to recuse himself from Supreme Court cases involving former President Donald Trump and Jan. 6 defendants.
“I must respectfully decline your request for a meeting,” Roberts wrote in a letter obtained by the Washington Examiner.
“In regard to questions concerning any Justice’s participation in pending cases, the Members of the Supreme Court recently reaffirmed the practice we have followed for 235 years pursuant to which individual Justices decide recusal issues,” he added.
Roberts said that only on “rare occasions in our Nation’s history” has a chief justice met with legislators with both major political parties present. He noted the separation of powers between the judicial and legislative branches and the importance of “preserving judicial independence counsel against such appearances.”
“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,” Roberts said.
Roberts’s letter comes after Alito sent a letter to the Democratic leaders declining to recuse himself from Jan. 6- and Trump-related cases before the high court. He said Wednesday that he had “nothing whatsoever to do” with the two flag incidents.
In the first case, his wife flew an upside-down flag over his house in 2021 as part of a dispute with a neighborhood family over their yard sign. In the second, an “Appeal to Heaven” flag waved by those who stormed the Capitol on Jan. 6, 2021, was observed at his New Jersey beach house last year.
Alito wrote neither incident merits his recusal and that he was unaware of the upside-down flag until it was brought to his attention. He similarly told lawmakers he was not aware of the connotations of the “Appeal to Heaven” flag.
“I was not even aware of the upside-down flag until it was called to my attention,” Alito wrote. “As soon as I saw it, I asked my wife to take it down, but for several days, she refused. My wife and I own our Virginia home jointly. She therefore has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly.”
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.
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The cases Democrats are asking Alito to recuse himself from are pivotal to the Supreme Court’s current term, and the justices have not yet handed down decisions.
One of the cases is Trump v. United States, in which justices must determine whether Trump has immunity from prosecution in the context of the 2020 election subversion case brought by special counsel Jack Smith. The other case involves consideration 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 at the Capitol.