A second flag of a type carried by rioters during the attack on the U.S. Capitol on Jan. 6, 2021, was displayed outside a house owned by Supreme Court Justice Samuel Alito, The New York Times reported Wednesday.
An “Appeal to Heaven” flag was flown outside Alito’s beach vacation home last summer. An inverted American flag — another symbol carried by rioters — was seen at Alito’s home outside Washington less than two weeks after the violent attack on the Capitol.
News of the upside-down American flag sparked an uproar last week, including calls from high-ranking Democrats for Alito to recuse himself from cases related to former President Donald Trump.
Another conservative justice, Clarence Thomas, also has ignored calls to recuse himself from cases related to the 2020 election because of his wife Virginia Thomas' support for efforts to overturn Trump's loss to President Joe Biden.
House Democratic Leader Hakeem Jeffries, D-N.Y., said at a press conference on Thursday that Alito and 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 Jan. 6 violent insurrection," Jeffries said.
Alito and the court declined to respond to requests for comment on how the “Appeal to Heaven” flag came to be flying and what it was intended to express. He previously said the inverted American flag was flown by his wife amid a dispute with neighbors, and he had no part in it.
The white flag with a green pine tree was seen flying at the Alito beach home in New Jersey, according to three photographs obtained by the Times. The images were taken on different dates in July and September 2023, though it wasn't clear how long it was flying overall or how much time Alito spent there.
The flag dates back to the Revolutionary War, but in more recent years it has become associated with Christian nationalism and support for Trump. It was carried by rioters fueled by Trump's “Stop the Steal” movement animated by false claims of election fraud.
Republicans in Congress and state officials have also displayed the flag. House Speaker Mike Johnson hung it at his office last fall shortly after winning the gavel. A spokesman said the speaker appreciates its rich history and was given the flag by a pastor who served as a guest chaplain for the House.
Alito, meanwhile, is taking part in two pending Supreme Court cases associated with Jan. 6: whether Trump has immunity from prosecution for his efforts to overturn the 2020 election results and whether a certain obstruction charge can be used against rioters. He also participated in the court’s unanimous ruling that states can’t bar Trump from the ballot using the “insurrection clause” that was added to the Constitution after the Civil War.
News of the second flag brought renewed calls for Alito to step aside from the Trump-related cases. “At this point it is difficult to make any reasonable case for Alito’s impartiality. It can and must be questioned. As a result, he must not sit on cases about the 2020 election or the insurrection he appears to have supported,” said Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington. The group represented Colorado voters in the “insurrection clause” case at the high court seeking to bar Trump from the ballot.
There has been no indication Alito would step aside from the cases.
Public trust in the Supreme Court, meanwhile, recently hit its lowest point in at least 50 years.
Judicial ethics codes focus on the need for judges to be independent, avoiding political statements or opinions on matters they could be called on to decide. The Supreme Court had long gone without its own code of ethics, but it adopted one in November 2023 in the face of sustained criticism over undisclosed trips and gifts from wealthy benefactors to some justices. The code lacks a means of enforcement, however.