Alito flag flap could have short shelf life in Washington

An unlikely controversy over provocative flag displays at homes owned by Justice Samuel Alito has quickly dissolved into a more familiar Washington scandal — an exercise in finger-pointing that suggests nothing will likely come of it.

No one, it seems, is interested in taking action about flags that suggest the conservative justice may sympathize with the Jan. 6 insurrectionists who stormed the Capitol in an attempt to keep Donald Trump in power.

Alito could act, by recusing himself from the pending case on Trump’s claims of presidential immunity, but has declined to do so. Even if his fellow justices could force him to step away, they almost certainly won’t. President Joe Biden doesn’t want to get involved.

In theory, Congress could act. But members of the House and Senate don’t agree on much these days, and issuing a subpoena to Alito or Chief Justice John Roberts — moves so monumental they could be seen as a challenge to the separation of powers — are difficult to imagine.

Members have called for hearings, urged the court to demand Alito recuse himself and called for the Department of Justice to insist that he step down — an action experts say DOJ would not likely take, especially without direction from the president.

The flag flap has, apparently, turned into a flop — just weeks after an initial report about the banners in The New York Times became the latest in a string of incidents that have further tarnished the image of the Supreme Court at a time of extreme polarization in American politics.

That polarization helps explain some of the inaction. But not all. The Alito flags have presented the court, the Department of Justice and Congress with a complex set of circumstances that defy an easy solution for nearly all the parties involved. Here’s how it breaks down:

Outrage, but no action in Congress

Despite fuming from lawmakers, Congress hasn’t even set a hearing over the two incidents: the flying of Old Glory upside-down at Alito’s Virginia home in the days after the attack on the Capitol and the display of the “Appeal to Heaven” flag outside Alito’s New Jersey beach house last year.

After The New York Times reported earlier this month on the inverted U.S. flag episode, Senate Judiciary Chair Dick Durbin (D-Ill.) seemed to dismiss the idea of holding a hearing on it.

“I don't think there's much to be gained with a hearing at this point,” Durbin told reporters. “I think [Alito] should recuse himself from cases involving Trump and his administration.”

It’s an open secret on Capitol Hill that Durbin’s most senior Democratic colleague on the judiciary panel, Sen. Sheldon Whitehouse of Rhode Island, has often favored a more confrontational approach on Supreme Court ethics issues.

In an interview with POLITICO, Whitehouse didn’t rule out hearings, but he said there’s probably not time to make that — or anything else of significance — happen on the flag issues before the court rules on Trump’s immunity bid or another key Jan. 6-related case. Those decisions are expected by the end of June.

“There aren't many next steps available with the chief justice and Justice Alito having told us to — as a considerable number of right-wing media outlets have said — go pound sand,” said Whitehouse, who’s sponsored legislation to overhaul the court’s ethics procedures. “That's a very, very short timeline for anything in Congress. So, there isn't much of the congressional arsenal that operates with anything like that kind of alacrity,” he added.

The committee did hold an acrimonious hearing on Supreme Court ethics issues about a year ago, mostly focused on an unreported private plane flight taken by Alito and various trips taken by Justice Clarence Thomas at the expense of a wealthy benefactor. The panel later voted along party lines to advance legislation to require the court to adopt a mandatory ethics code, but that bill never went further due to a lack of Republican support in the House or Senate.

Of course, the only clear remedy in the Constitution for unethical conduct by a justice is impeachment. But that’s a nonstarter due to the fact that Democratic lawmakers seem to be the only ones expressing outrage about Alito. Impeachments have to start in the House and with that body under Republican control only the GOP can initiate performative removal proceedings. Many lawmakers would probably also consider rolling out impeachment over a couple of flag-raising incidents to be like using a bazooka to kill a fly.

“There’s no recourse other than impeachment, and we’re not at that point at all,” Durbin said on May 20.

Biden stays on the sidelines

While the Alito flag stories have preoccupied Washington in recent days, they haven’t generated much comment from the city’s most prominent resident. In fact, Biden’s spokespeople have rebuffed reporters’ efforts to seek the president’s reaction to the Alito tempest.

The reason for Biden’s reticence isn’t entirely clear, but people close to the White House have said the president is wary of being seen to try to mount attacks on individual judges or justices — something Trump did repeatedly during his 2016 campaign and during his presidency.

While Biden has been openly critical of the Supreme Court and is now using the court as campaign fodder, he has never embraced the idea of major reforms like term limits for justices or an expansion of the court. As a sop to those on the left who have pushed such changes, he named a commission to study potential reforms, but structured it to produce no formal recommendations.

A nonstarter at the Justice Department

With Alito already rebuffing Democratic lawmakers’ calls for his recusal in the Trump immunity case and other Jan. 6 cases, some court critics have been trying to come up with creative ways to force the issue. In a New York Times op-ed Wednesday, Rep. Jamie Raskin (D-Md.) urged the Justice Department to ask the full court to throw Alito off the Jan. 6-related cases.

However, several experts consulted by POLITICO said they were not aware of any previous instance where the Justice Department sought recusal by any justice in any matter. Even in lower federal courts, prosecutors rarely seek recusal of any judge. With the government virtually certain to come before those same judges again and again, prosecutors are loath to alienate those judges and to raise doubts about the fairness of their rulings.

“The Justice Department will not make this motion,” said New York University law professor Stephen Gillers, a prominent legal ethics scholar.

The Justice Department declined comment.

A self-regulating high court

The court itself has tended to move at a glacial pace on ethics issues, with such concerns typically taking a back seat to the justices’ longtime desire for unanimity and the deference they tend to show their colleagues.

After a sustained controversy last year over gifts of travel to Alito and Thomas, the court did unanimously adopt a formal ethics code in November. But it did not include any enforcement mechanism and it contained language that seems to rule out the justices overruling a colleague’s decision on recusal.

“Individual Justices, rather than the Court, decide recusal issues,” the code said.

Chief Justice Roberts appears to have pushed for the ethics code, even though it was watered down in some respects from ethics principles the justices endorsed earlier in the year. On Thursday, he cited that line from the code as he declined a request from Durbin and Whitehouse to meet about the issue.

Gillers said any formal recusal request from the DOJ would be a dead letter at the high court.

“The other seven justices will ignore or dismiss a petition to recuse Alito and Thomas in part because it's never been done that way and because of a desire for collegiality within the court. If they do, nothing can be done,” Gillers said. “If the justices do consider the petition on the merits, they or a majority of them will reject recusal based on the high bar in the recusal statute and again some unspoken desire for collegiality. Alito has said enough in explanation to support a decision by the other justices to reject recusal under governing case law.”

Katherine Tully-McManus contributed.