The Supreme Court must immediately create an enforcement mechanism for its Code of Conduct following reports that two flags associated with the January 6th insurrection flew at Justice Samuel Alito’s homes on multiple occasions, according to a letter sent by Citizens for Responsibility and Ethics in Washington to Chief Justice John Roberts. Under current rules, Justice Alito will face no consequences for hearing cases pertaining to the 2020 election and insurrection despite his apparent violation of the Code and the law.

According to reporting by The New York Times, an inverted American flag – a public symbol of the “Stop the Steal” movement – flew at the home of Justice Alito just days after the violent insurrection at the U.S. Capitol building, while the Court was considering a 2020 election-related case. Further reporting indicated that a second so-called “Appeal to Heaven” flag, associated with a far-right religious sect of the “Stop the Steal” movement aiming to remake our democratic government in Christian terms, was displayed multiple times at Justice Alito’s vacation home as recently as September 2023, when even more high stakes insurrection-related cases came before the Court. Both flags were carried by rioters at the Capitol on January 6th. 

These actions are likely in direct contradiction to several rules contained within the Code, particularly that justices should respect the law and act at all times “in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” and that a justice should recuse themselves when their “impartiality might reasonably be questioned.” A further canon goes so far as to caution all Supreme Court employees against all political displays, including signs and bumper stickers. While the Code suggests recusal in this situation, the law likely commands it.  28 U.S.C. §455 makes clear that a Justice “shall disqualify himself” where “he has a personal bias or prejudice concerning a party.”

“It is astonishing that a justice of the Supreme Court apparently repeatedly, over years, displayed symbols associated with insurrection and overturning an election. Justice Alito’s conduct undeniably brings his impartiality into question and warrants his immediate recusal,” said CREW president Noah Bookbinder. “That Justice Alito may continue to rule without consequence on cases central to American democracy, such as whether President Trump has immunity for his actions on January 6th, despite the obvious appearance of a conflict of interest, is ludicrous—but sadly possible under our current system.”

Despite a clear obligation under the law and under the Code to recuse, there has so far been no indication from Justice Alito that he intends to do so. Furthermore, recent reporting indicates that the Court was put on notice of this problematic and political display at Justice Alito’s house, and yet did nothing about it. The letter further calls on Chief Justice Roberts in his role as head of the federal judiciary to encourage Justice Alito to recuse from relevant cases.

“The public should be able to trust that the Supreme Court, of all institutions, will hold itself to the highest ethical standards and always follow the law. The plethora of recent ethics scandals from the Court shows that we cannot take this for granted,” said Bookbinder. “This is a crisis of democracy. The Supreme Court must immediately adopt an enforcement mechanism that independently evaluates possible conflicts of interest and ensures judicial compliance with the Court’s Code of Conduct and the law.”

Read More in Letters