Leading Democrats demand Alito face investigation after second report of far right-linked flag

Leading Democrats are demanding that Samuel Alito recuse himself from election-related cases and also face investigation after a second report that a flag now associated with the far right was flying above one of his homes.

Dick Durbin, the Senate judiciary chair, urged the US supreme court justice to step back from certain major cases and demanded John Roberts, the chief justice, implement an enforceable code of conduct on his bench, while Alexandria Ocasio-Cortez called on the US Senate investigate.

The demands follow a new report by the New York Times of a second incidence of flags flown at homes of Alito that are associated with the 6 January 2021 attack at the US Capitol.

Durbin put out a statement late on Wednesday, saying: “This incident is yet another example of apparent ethical misconduct by a sitting justice, and it adds to the court’s ongoing ethical crisis. For the good of our country and the court, Justice Alito must recuse himself immediately from cases related to the 2020 election and the January 6th insurrection. And the chief justice must see how this is damaging the court and immediately enact an enforceable code of conduct.”

On Thursday, the House minority leader, Hakeem Jeffries, criticized Alito and also Clarence Thomas, both of whom have been targets of corruption allegations. Jeffries said: “Samuel Alito and Clarence Thomas are totally out of control … In the case of Samuel Alito, he definitively needs to recuse himself from any matter pending before the United States supreme court that has to do with the January 6th violent insurrection.”

Ocasio-Cortez also weighed in during an interview with the MSNBC host Chris Hayes late on Wednesday, calling on Senate Democrats to launch “active investigations”.

The congresswoman said: “What we are seeing here is an extraordinary breach of not just the trust and the stature of the supreme court, but we are seeing a fundamental challenge to our democracy.”

She added: “Samuel Alito has identified himself with the same people who raided the Capitol on January 6 and is now going to be presiding over court cases that have deep implications over the participants of that rally.“And while this is the threat to our democracy, Democrats have a responsibility for defending our democracy.”

The New York Times reported that an “appeal to heaven” flag, which has been adopted by Christian nationalists, was flown at the summer home of Alito on Long Beach Island, New Jersey, last July and September. The flag was carried by some in the crowd during the far-right, violent insurrection at the US Capitol, where extremist supporters of Donald Trump broke in to try, in vain, to stop the US Congress from certifying Joe Biden’s victory in the 2020 election over Trump.

Also known as the pine tree flag, it was originally used on warships commanded by George Washington during the American revolutionary war against the ruling British. It has since been adopted by Christian nationalists who advocate for an American government based on Christian teachings.

The second flag report comes after the paper also reported that an upside-down American flag was flown outside the Virginia residence of Alito’s home shortly after the January 6 insurrection. Alito claimed his wife flew the flag briefly during a spat with neighbors over politics.

Katherine Clark, the Democratic House whip, said Alito had displayed flags that “support insurrection” and religious nationalism and attack fair elections.

“This is a threat to the rule of law and a serious breach of ethics, integrity and Justice Alito’s oath of office,” she said, also demanding that he recuse himself from any January 6 or Trump and election-related cases.

The supreme court is expected to rule next month on cases including Trump’s request for absolute immunity from criminal prosecution and the use of obstruction law in January 6 cases, including Trump’s federal election interference criminal case.

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Senator Richard Blumenthal, Democrat of Connecticut, posted on X: “Flying this flag is a political statement that is a clear and compelling reason for Alito’s recusal. He cannot responsibly sit on Trump-related cases when he has already signaled his sympathy with January 6th rioters. He owes the American people an explanation.”

Sheldon Whitehouse also posted, with pictures of the offending flags.

The Rhode Island Democratic senator said on X: “Did another neighbor make Alito’s wife mad? How many Maga battle flags does Alito need to fly for the court or the judicial conference to see there’s a problem?”

Durbin has been pushing for regulation of the supreme court.

He added: “This episode will further erode public faith in the court. The Senate judiciary committee has been investigating the ethical crisis at the court for more than a year, and that investigation continues. And we remain focused on ensuring the supreme court adopts an enforceable code of conduct, which we can do by passing the Supreme Court Ethics, Recusal, and Transparency Act.”

He has repeatedly called for the passing of legislation that the judiciary committee advanced last July. The supreme court has an internal, non-binding code of ethics.

Neither the supreme court nor Alito had commented by Thursday morning.