Chief Justice John Roberts on Thursday declined a request to meet with Senate Judiciary Committee Chair Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.) about their push for Justice Samuel Alito to recuse himself from upcoming Supreme Court cases dealing with Jan. 6, 2021, and the effort to overturn the 2020 election.
The two Democratic senators had asked for a meeting with the chief justice last week after reports emerged showing an upside-down American flag and an “Appeal to Heaven” flag were flown over Alito’s homes in recent years, arguing the incidents add to a worsening ethics situation for the Supreme Court. Durbin and Whitehouse have been pushing for new ethics legislation aimed at Supreme Court justices for more than a year.
Roberts declined the meeting, pointing to the lack of precedent for such a sit-down with legislators of a single party.
“I must respectfully decline your request for a meeting,” Roberts wrote in a letter. “As noted in my letter to Chairman Durbin last April, apart from ceremonial events, only on rare occasions in our Nation’s history has a sitting Chief Justice met with legislators, even in a public setting (such as a Committee hearing) with members of both major political parties present.”
“Separation of powers concerns and the importance of preserving judicial independence counsel against such appearances,” Roberts continued. “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.”
The letter from Durbin and Whitehouse last week called for the meeting about Alito’s potential recusal from upcoming cases before the court, including one concerning whether former President Trump has immunity from prosecution.
It also argued that the flags flown over Alito’s residences, which have in recent years become associated with the “Stop the Steal” movement aimed at overturning Trump’s 2020 electoral loss, “clearly created an appearance of impropriety” that violated the justices’ code of conduct that the Court adopted last year.
“He also created reasonable doubt as to his impartiality in certain proceedings, thereby requiring his disqualification in those proceedings as established by the Code of Conduct and federal law,” they wrote to Roberts.
Alito on Wednesday told Durbin and Whitehouse in a letter that he will not recuse himself from the cases. He maintained that his wife, Martha-Ann, was responsible for hoisting the flags.
“I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside-down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused,” Alito wrote. “My wife is fond of flying flags. I am not. My wife was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.”
Alito and Justice Clarence Thomas have found themselves in a prolonged spat with the two Democratic senators, who have led the push for ethics reform at the court after reports indicated they have received lavish gifts and vacations from wealthy donors and benefactors.
Alito fired back at them last year, arguing to The Wall Street Journal that Congress has no role to play in ethics concerns related to the justices.