Justice Alito won't recuse himself in Jan. 6 cases. Here's what the Senate could do about that.

In 1969, Mrs. Lawrence Hubner, a 26-year-old mother of two and a winner of an American Legion good citizenship award as a high school student, was arrested, searched and put in handcuffs for flying an American flag upside down.

Under the law, the only permissible use of an upside-down flag is to signal "dire distress in instances of extreme danger," particularly at sea, and Mrs. Hubner instead wanted to display a symbol of the nation's distress during the Vietnam War.

Times have changed.

Two years ago, an upside down flag was spotted outside the Virginia home of U.S. Supreme Court Justice Samuel A. Alito Jr. In recent years, the upside down flag has been used to signal support for overturning the 2020 election. Alito also owns a New Jersey vacation home where another coup-related banner — the "An Appeal to Heaven" flag — flew last summer, the New York Times reported this past week.

Both flags were carried by insurrectionists during the Jan. 6, 2021, assault on the U.S. Capitol.

At first, Alito said the upside-down flag was flown by his wife in a dispute with a neighbor. But that doesn't explain the second flag. Together, the flags give the clear appearance of a Supreme Court justice who sides with the Jan. 6 insurrection even as he prepares to issue a vote on two monumental cases arising from that attack on democracy.

Unlike Mrs. Hubner, Alito isn't an ordinary citizen protesting something. His actions resemble an umpire or referee before a big game exclaiming a strong personal preference for who should win. No sports league would allow a partisan zealot to officiate games. Why should we demand more purity in our sporting events than in our courts?

Virtually no one expects Alito to recuse himself from the Jan. 6 coup-related cases, which is why Illinois Sen. Dick Durbin, head of the Senate Judiciary Committee, should hold hearings on Alito's actions.

It's unlikely Alito would honor a subpoena to testify, but Chief Justice John Roberts could also be summoned and asked what he intends to do about Alito — and also fellow Justice Clarence Thomas, who failed to report largesse he accepted from wealthy individuals.

‘Weakness of Supreme Court recusal practices’

It could not be clearer the Supreme Court needs genuine ethics rules, not the hazy and unenforceable guidelines it approved last year that have no teeth and leave it up to justices to decide on their own whether to recuse themselves when there is a conflict of interest.

"I think it demonstrates the complete weakness of Supreme Court recusal practices," Northwestern University Law Professor Emeritus Steven Lubet, an expert on judicial ethics, told us. "The outrage is Alito would be making the recusal decisions for himself with no review. In any reasonable system someone else would be making the decision."

When news of the first flag broke, Durbin said it would not be productive to hold hearings. Instead, Durbin called for passing the Supreme Court Ethics, Recusal, and Transparency Act, but that bill is unlikely to get the 60 votes it needs to overcome a Republican filibuster.

After news of the second flag appeared, Durbin said he would take time to think about holding hearings. In our view, Durbin and the Judiciary Committee have a civic duty to do so.

It has been argued the Judiciary Committee could best use its time in the remaining days of the session to confirm federal judges. Although the committee has approved more than 200 judges, more than 40 vacancies remain.

But as Laurence H. Tribe, Harvard University law professor emeritus, wrote us in an email: "It's not either/or. There's no reason in the world why [Durbin] can't do both."

In a healthy democracy, the Supreme Court should not consider itself above the law. All judges in the lower courts are barred from actions such as Alito's. Moreover, a person who voiced support for the insurrectionists would not be eligible for a low-level security job at the Capitol. Even the court's own employees are subject to guidelines prohibiting political yard signs and bumper stickers.

Congress needs to use its authority to make it clear strong ethics rules apply to the members of the Supreme Court.

The Democracy Solutions Project is a collaboration among WBEZ, the Chicago Sun-Times and the University of Chicago’s Center for Effective Government, with funding support from the Pulitzer Center. Our goal is to help listeners and readers engage with the democratic functions in their lives and cast an informed ballot in the November 2024 election.

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