Two Senate Democrats want a meeting with Supreme Court Chief Justice John Roberts following reports that Justice Samuel Alito flew at his homes two flags associated with former President Donald Trump’s push to overturn the 2020 election.

In a letter to Roberts dated Thursday, Sens. Dick Durbin of Illinois and Sheldon Whitehouse of Rhode Island urged the chief justice to take steps to ensure Alito recuses himself from cases related to the Jan. 6, 2021, attack on the Capitol and Trump’s efforts to subvert the election results. They also requested that Roberts meet with them “to discuss additional steps to address the Supreme Court’s ethics crisis.”

Durbin chairs the Senate Judiciary Committee. Whitehouse is also a member of the panel and chairs its subcommittee on federal courts. 

The New York Times has reported that Alito flew an upside-down American flag outside his Virginia home in January 2021 and an “Appeal to Heaven” flag at his vacation house in New Jersey last summer. Both flags were were carried by Capitol rioters on Jan. 6 and have become symbols of support for Trump.

Alito blamed the upside-down flag on his wife, who he said was in a dispute with a neighbor over political yard signs. He has not publicly commented on the flag at his vacation home.

“By displaying or permitting the display of prominent symbols of the ‘Stop the Steal’ campaign outside his homes, Justice Alito clearly created an appearance of impropriety in violation of the Code of Conduct for Justices of the Supreme Court of the United States … that all nine justices adopted last year,” Durbin and Whitehouse wrote. “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.”

The Supreme Court did not immediately respond to an email from Spectrum News seeking comment.

The high court in November established a code of conduct that in part, explains that justices “should not participate in extrajudicial activities that detract from the dignity of the Justice’s office, interfere with the performance of the Justice’s official duties” or “reflect adversely on the Justice’s impartiality.” It also states justices should refrain from political activity.

Durbin and Whitehouse said they believe Alito has violated the ethics code by failing to “avoid impropriety and the appearance of impropriety in all activities.” 

They also wrote that federal law requires the disqualification of a justice when their “impartiality might reasonably be questioned” and that the code of conduct also calls for recusal when “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” 

The ethics code makes no mention of what happens if a justice breaks the rules. In their letter, Durbin and Whitehouse renewed their call for the Supreme Court to adopt an enforceable code of conduct.

“For centuries, Supreme Court justices conducted themselves in such a way that the absence of proper procedures consistent with these principles was a moot failing,” the Democratic senators wrote. “That is no longer true. The Court’s Code of Conduct has failed to redress or prevent any of these ethics violations, largely because it contains no enforcement mechanism.”

Durbin and Whitehouse argued the court does not appear to have investigated incidents involving Alito and Justice Clarence Thomas that the senators say likely warranted their recusals. Last year, Alito refused to recuse himself in a case in which one of the parties was represented by an attorney who interviewed Alito twice for The Wall Street Journal. Thomas’ wife, Ginni, reportedly pressed lawmakers in multiple swing states won by Joe Biden to appoint pro-Trump electors, and Thomas has not withdrawn from cases involving Jan. 6. 

The watchdog group Citizens for Responsibility and Ethics in Washington sent its own letter to Roberts on Friday also urging him to create an enforcement mechanism to the ethics policy and to encourage Alito to recuse himself from cases in which his impartiality might be questioned. 

“By allowing these political displays at his homes, Justice Alito harmed our democracy by explicitly mixing politics and judicial decision-making,” CREW President Noah Bookbinder wrote. “This is a crisis of democracy.”

While even some Senate Republicans — including Sen. Lindsey Graham of South Carolina, John Thune of South Dakota and Mitt Romney of Utah — have also criticized Alito, former Vice President Mike Pence defended him Friday, writing on X, formerly Twitter, that the “Appeal to Heaven” flag, also known as the “Pine Tree Flag,” dates back to the American Revolution.

“The controversy over Justice Alito flying the ‘Appeal to Heaven’ flag is absurd and anti-historical,” Pence wrote, adding that it “is part or our proud heritage of Faith and Freedom and every American should be proud to fly it.”

The flag, however, fell into obscurity until 2020, when it was adopted by Christian nationalists supporting Trump’s “Stop the Steal” campaign.