Chief Supreme Court Justice Declines to Meet With Senators About Alito’s Flags

Chief Supreme Court Justice John Roberts on May 30 declined a request to meet with Democrat senators who want another justice to recuse from cases involving former President Donald Trump and the Jan. 6, 2021, breach of the U.S. Capitol.

The senators recently urged Justice Roberts to “take appropriate steps” to make sure Justice Samuel Alito recused himself from an immunity appeal from President Trump and a Jan. 6 case because an upside-down American flag was flown outside his home, and a so-called Appeal to Heaven flag was flown at his beach house.

“We also renew our call for the Supreme Court to adopt an enforceable code of conduct for justices. And we request a meeting with you as soon as possible, in your capacity as Chief Justice and as presiding officer of the Judicial Conference of the United States, to discuss additional steps to address the Supreme Court’s ethics crisis,” Mr. Durbin, chairman of the Senate Judiciary Committee, and Mr. Whitehouse wrote on May 23.

Apart from ceremonial events, the Supreme Court’s chief justice rarely meets with legislators, Justice Roberts, an appointee of former President George W. Bush, noted. “Separation of powers concerns and the importance of preserving judicial independence counsel against such appearances,” he wrote. “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.”

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“I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal,” he wrote.

Justice Alito said it was his wife’s decision to fly the flags.

Federal law states in part that any judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The Supreme Court’s code of conduct says that a justice should recuse if in a proceeding where his or her impartiality “might reasonably be questioned” or “where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his or her duties.”

A number of Democrats have called on Justice Roberts to step in to force the recusal of Justice Alito and Justice Clarence Thomas, an appointee of former President George H. W. Bush, to recuse from the cases involving President Trump and Jan. 6.

Justice Thomas has been criticized because his wife was involved in the election integrity movement. The flags flown at the Alito homes have been associated with the movement.

“Your position gives you substantial moral and persuasive authority to establish norms of behavior and to hold your colleagues to them,” Sen. Richard Blumenthal (D-Conn.) wrote to Justice Roberts on Thursday. “I urge you to use that authority to convince Justices Thomas and Alito to recuse themselves in these cases—critical to our democracy and the rule of law—where their ‘impartiality might reasonably be questioned.’”

Department of Justice officials, including Attorney General Merrick Garland—appointed by President Biden—can invoke the U.S. Constitution and the federal law governing when judges should recuse themselves, Mr. Raskin, a former constitutional law professor, added.

Mr. Raskin said that the other seven justices on the court “will have both a constitutional obligation and a statutory obligation to enforce recusal standards.” He highlighted a previous case in which the nation’s top court ruled against a lower court judge who refused to recuse.

In that 2016 case, the majority said that Pennsylvania Chief Justice Ronald Castile violated the Constitution when he declined calls to recuse from a man’s case based on how he’d prosecuted the man while a prosecutor.

“Where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level,” then-Justice Anthony Kennedy wrote for the majority in the decision.

The Supreme Court and Department of Justice did not respond to requests for comment.

Sen. John Cornyn (R-Texas) was among those criticizing Mr. Raskin’s position.

“For someone who calls himself a constitutional law professor, Mr. Raskin seems strangely unacquainted with the doctrine of separation of powers. This is pure harassment,” Mr. Cornyn wrote on the social media platform X.