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Democrats renew push on Supreme Court ethics, but GOP dissents

Partisan split leaves little room for action after Alito flag revelations

Rep. Hank Johnson, D-Ga., speaks Wednesday during an event at the Supreme Court with MoveOn and progressive organizations whose members are demanding an investigation into Justice Alito.
Rep. Hank Johnson, D-Ga., speaks Wednesday during an event at the Supreme Court with MoveOn and progressive organizations whose members are demanding an investigation into Justice Alito. (Leigh Vogel/Getty Images for MoveOn)

Democrats and outside advocacy groups have rallied for congressional action after revelations of controversial flags flown outside the homes of Justice Samuel A. Alito Jr., but the calls have met a familiar partisan wall of opposition.

In the latest Rorschach test of Supreme Court ethics, The New York Times reported that two flags connected to the “Stop the Steal” movement were flown outside homes owned by the Alitos in 2021 and 2023.

Democrats in Congress have called for Alito to remove himself from deciding certain cases, introduced new legislation and assured further investigation, while outside groups have pushed for more overt action in response to what they say is the latest sign of a court running off the rails.

For Republicans, the latest action fits into a pattern of Democratic-led potshots at the conservative-controlled court aimed at influencing the outcome of cases.

Sen. Thom Tillis, R-N.C., a member of the Judiciary Committee, said in an interview Wednesday that the Alito controversy blends in with years of Democrats’ criticism of the court, going back to a 2020 speech Majority Leader Charles E. Schumer, D-N.Y., made on the Supreme Court steps where he said the justices would “pay the price” for their decisions.

“We’ve got to get out of that mode, this is just another example of it. Was it a bad idea to have that flag raised? Whoever did it? Yeah. Does it rise to a level that I think it disqualifies him as a jurist? No. And I don’t think any other reasonable person would,” Tillis said.

Justices’ behavior has gone under a microscope in the past two years, as the 6-3 conservative court has issued decisions reshaping American law, including decisions to end the constitutional right to an abortion, expand gun rights and rein in the administrative state.

Determined Democrats

Rep. Hank Johnson, D-Ga., and other Democrats have called for Alito and Justice Clarence Thomas to recuse themselves from one of the most consequential cases this term, about whether former President Donald Trump has immunity from federal charges tied to his effort to overturn the 2020 election.

They argue that Alito showed he would not be impartial in the cases through the upside-down American flag outside the Virginia home of Alito and his wife in the days after the Jan. 6, 2021, attack on the Capitol and an “Appeal to Heaven” flag at the couple’s New Jersey beach home in 2023.

Similarly, Democrats have said Thomas should step aside because his wife, Virginia “Ginni” Thomas, communicated with former White House Chief of Staff Mark Meadows to support the effort to overturn the election.

Speaking on Wednesday at an event on the Supreme Court steps, Johnson said “there’s a five-alarm fire” at the court, and he coupled public pressure for legislative action in the Senate with a campaign pitch to elect Democrats in November.

“So this is a court that is out of control. It’s a court that needs to be reined in,” Johnson said.

On Tuesday afternoon, Rep. Dan Goldman, D-N.Y., held his own event on the Supreme Court steps to introduce legislation to establish an independent ethics office and internal investigations counsel within the Supreme Court.

Goldman pointed to declining public support for the court and said that the ethics code the court announced last year, which lacks an enforcement mechanism, would not be enough to shore up its legitimacy.

“This is, unfortunately, long overdue. And we have asked the Supreme Court and the chief justice numerous times to police itself to ensure that general, commonly understood ethics rules that apply to every other judge in this country should also apply to the Supreme Court,” Goldman said.

The Goldman bill joins a host of others sponsored by Democrats, including ones to limit Supreme Court terms to 18 years, expand the seats on the court and establish an enforceable ethics code. The Senate Judiciary Committee advanced one of those along party lines last year, and advocates argued the full Senate should vote on it.

House Judiciary Committee ranking member Jerrold Nadler, D-N.Y., speaking after the Tuesday event, said those bills do not have much chance without Republicans, who control the House and enough Senate seats to mount a filibuster.

“It depends on what the Republicans do. So far, they’ve been recalcitrant. If they remain recalcitrant, they won’t pass this Congress,” Nadler said.

Gabe Roth, executive director of advocacy group Fix the Court and who backs the Goldman bill, said the Alito story “hasn’t really broken through” among Republicans.

Reluctant Republicans

House Judiciary Chairman Jim Jordan, R-Ohio, called Democrats’ complaints over Alito a “naked power grab” in a Newsweek op-ed published Monday. The op-ed followed similar criticism of Democrats’ past Supreme Court efforts, accusing them of trying to game the court by picking off Alito.

“These Democrats want to force Justice Alito to recuse from two upcoming cases because they assume that they will not agree with his opinions in the cases,” Jordan wrote.

In a floor speech Wednesday, Senate Minority Leader Mitch McConnell, R-Ky., called the criticism of Alito “profoundly unserious” and suggested that the senators who raised the issue of Alito’s recusal had themselves been unethical.

“We don’t need to ‘Appeal to Heaven’ to fix this problem, just to the Supreme Court’s power to police the ethical practice of law among the members of its bar,” McConnell said.

Last week Alito himself responded to the controversy, writing to members of the House and Senate that he would not step aside in any cases tied to Trump. In the letters he said his wife flew both flags and claimed neither he nor his wife knew they were tied to the “Stop the Steal” movement.

Separately, Roberts declined a request from Senate Judiciary Chair Richard J. Durbin, D-Ill., and Sen. Sheldon Whitehouse, D-R.I., that the three meet, arguing that separation of powers concerns should prevent it.

Outside groups such as Stand Up America have pushed Congress to do more. “We need Congress to step up and use its constitutional power as a co-equal branch of government to check this court. That starts with the Senate Judiciary Committee launching a full investigation into Samuel Alito’s conduct, complete with hearings,” said Christina Harvey, the group’s executive director. “If Alito is going to blame his wife, let him do it under oath.”

Durbin said Republicans have ignored that Congress has a constitutional responsibility to check another co-equal branch of government. Durbin also said he still hopes for a Senate floor vote on the ethics bill his committee approved last year.

“Alito and Thomas have aligned themselves with the Republican Party, so it is no surprise that Republicans would be defending them,” Durbin said in an interview.

Durbin has said publicly that the Judiciary Committee is investigating justices’ conduct, and said Wednesday that he has not ruled out calling another hearing on Supreme Court ethics. But he said people are getting their hopes too high over forcing justices to testify.

On top of being constitutionally dubious, a subpoena for a Supreme Court justice would be impossible to enforce, Durbin said. Enforcing a subpoena would require 60 votes to advance, something unlikely to happen in the current Senate.

“Not only is it unprecedented, it is not likely to ever occur in the current political alignment. We need 60 votes to enforce a subpoena. And that clearly means you need bipartisanship and we don’t have it on this issue,” Durbin said.

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