[Congressional Record Volume 170, Number 94 (Monday, June 3, 2024)]
[Senate]
[Pages S3917-S3918]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. DURBIN. Madam President, when I went to college here in 
Washington, at Georgetown, I used to come into this Capitol Building 
and sit up there where the visitors are now sitting and watch what was 
going on on the Senate floor.
  I can remember so many things, particularly the day that Bobby 
Kennedy gave a speech about Vietnam that was highly anticipated. He 
came walking through that door with his brother, Ted Kennedy--both of 
them Senators, one from New York, one from Massachusetts.
  It was a historic moment, it was a magical moment. For a college 
student, it was just overwhelming to be a witness to that history and 
to realize what this Chamber has meant to this Nation, what this 
building has meant to this Nation throughout our history.
  That is why I will never forget what happened in this Chamber on 
January 6, 2021. Violent extremists stormed the Capitol to prevent 
certification of the 2020 Presidential election. Donald Trump was 
engaged in the Big Lie.
  For the first time really in the history of the United States, he 
questioned the legal outcome of an election.
  Madam President, you and I both know that is fundamental to 
democracy--the belief that we can have the peaceful transition of the 
decisionmakers guided by the people of this country without political 
interference.
  As insurrectionists ransacked this building, many carried flags and 
banners to show their support for former President Trump in his effort 
to overturn the election--the Big Lie. Two of the more prominent 
symbols of the so-called ``Stop the Steal'' campaign on behalf of 
President Trump were on display that day. One was an American flag 
flown upside down and the other a so-called ``Appeal to Heaven'' flag.

  While the events of January 6 were hard to imagine, reports that the 
same battle flags flew outside Supreme Court Justice Samuel Alito's 
home were nearly as shocking. In January of 2021, less than 2 weeks 
after the insurrection at the Capitol, an upside-down American flag 
flew over Justice Alito's front lawn in suburban Virginia. In the 
summer of 2023, the ``Appeal to Heaven'' flag flew on the flagpole of 
the Alitos' beach home in New Jersey. While these flags may have once 
held other meanings, in the year 2021, they were closely associated 
with election deniers and extreme rightwing politicians. They are, in 
fact, the battle flags of Trump's MAGA movement.
  The Supreme Court's authority ultimately rests on its reputation and 
public confidence. The Supreme Court doesn't own the Army. It doesn't 
have a vast Treasury. It depends on people trusting the Justices to 
make honest, professional decisions. This reputation and public 
confidence is the strength of the Supreme Court. That is why the 
Supreme Court's recently adopted code of conduct requires Justices to 
avoid impropriety and the appearance of impropriety in all activities. 
Both the code of conduct and Federal law require Justices to recuse 
themselves when their impartiality might reasonably be questioned.
  The flying of these flags marks a new, disturbing chapter in the 
Supreme Court's ongoing ethical crisis. It suggests that Justice Alito 
has not only chosen sides in an ongoing political dispute but that he 
has also announced his allegiance in pending legal disputes.
  As we speak, the Supreme Court is considering two critical cases 
relating to the 2020 Presidential election and the January 6 
insurrection. In Trump v. United States, the Supreme Court will decide 
whether former President Trump is immune from criminal prosecution for 
his efforts to overturn the election. In Fischer v. United States, the 
Court--again, the Supreme Court--will determine whether the Federal 
felony obstruction statute applies to the January 6 rioters who tried 
to stop Congress from exercising its constitutional duty to certify the 
election. The Court's rulings on these issues will be critical to 
ensuring that those responsible for one of the darkest chapters in our 
history are held accountable.
  Displaying the upside-down American flag and ``Appeal to Heaven'' 
flag creates the appearance that Justice Alito has already aligned 
himself with the ``Stop the Steal'' campaign. He cannot credibly claim 
to be an umpire--calling balls and strikes--in these cases. He has 
donned the jersey of his favorite team. That is why I called on Justice 
Alito to recuse himself and why I urged Chief Justice Roberts to 
finally step up and take the steps necessary to ensure that Justice 
Alito does not sit on those cases and, rather, that he recuse himself. 
Last week, Justice Alito refused my request.
  I am going to keep this letter--the original version that was sent to 
me and sent to the White House by Justice Alito--in which he makes an 
argument that these flags should not be taken seriously; that it was 
his wife's decision. There were complications in her decision. It is 
hard to accept this. It is hard, first, to believe that this man we are 
asking to recuse himself from these Supreme Court cases has somehow 
stood in judgment of himself and decided that he did nothing unethical 
and should not recuse himself. He refused our request to recuse himself 
from these cases. In doing so, he claimed he bears no responsibility 
for the January 6-related flags flying over his homes. Instead, he 
placed the blame solely on his wife.
  He went on to downplay the significance of the upside-down American 
flag display, claiming it was part of a dispute with his neighbors, and 
he denied knowing about the connection between the ``Appeal to Heaven'' 
flag and the January 6 insurrection on the Capitol.
  Chief Justice Roberts, likewise, refused my request to take action 
and simply deferred to Justice Alito's decision. But Justice Alito's 
refusal to recuse begs the question: Why should he have the sole power 
to decide whether his recusal from the case is necessary?
  Additional reporting has already called into question his version of 
events with text messages and even a recording of a call to police 
suggesting the neighborhood dispute occurred after the upside-down 
American flag flew over the Alito residence. Whether Justice Alito 
raised these flags himself or stood idly by while his wife did so, the 
fact remains the same: A reasonable person would question Justice 
Alito's impartiality to the cases relating to the 2020 election and 
January 6. Recusal is, therefore, necessary.
  But the consequences of Justice Alito's actions go far beyond this. 
He needs to recuse himself from these cases. By displaying two symbols 
of the MAGA Republican movement, Justice Alito presented himself to the 
world as a political actor and an ally of the far right. His actions 
suggest that no matter what arguments are made or what evidence is 
presented at the Supreme Court, his decisions will align with his 
personal beliefs and policy preferences.
  And no matter what excuses or explanations he provides now or in the 
future, it will be hard for anybody before the Court to believe that 
Justice Alito approaches that case without bias.
  We cannot afford the further erosion of public confidence in our 
courts. Our faith in the impartiality of judges is essential to the 
functioning of our legal system and our form of government. For more 
than a year, story after story has broken about ethical misconduct by 
sitting Justices of the Supreme Court. We have learned that some 
Justices, including Justice Alito again, accepted gifts and travel from 
billionaires with interests before the Court. The Senate and the 
American people deserve to know the full extent of how immense wealth 
is used to buy private access to the Justices. That is why the Senate 
Judiciary Committee is exercising its constitutional authority to 
investigate what has been provided to the Justices.

  I will continue to push for legislation--a bill sponsored primarily 
by Sheldon Whitehouse, but many of us have joined as cosponsors--to 
establish a binding code of conduct and recusal standards for the 
Justices.
  Why in the world should the highest Court in our land have the lowest 
standard of ethics? If every other Federal judge is held to a standard 
of ethics to make certain that their reputations are intact, why would 
that not

[[Page S3918]]

apply to the Justices sitting on the highest Court of the land?
  We will continue to push for legislation to create a binding code of 
conduct and recusal standards that the American people can see. Last 
year, the Judiciary Committee reported to the floor the Supreme Court 
Ethics, Recusal, and Transparency Act. Importantly, this legislation's 
ethical and recusal requirement would apply equally to every Justice of 
the Supreme Court regardless of the party or the President who 
appointed them. The Supreme Court has failed to act to address the 
ethical crisis that has engulfed it, and so the Senate must do so.
  This is a simple fact: There is a Chief Justice of the Supreme Court, 
John Roberts. It is within his power to resolve this ethical issue 
tonight--to have it done by the morning--to make it clear that the 
Supreme Court is taking a different course, one that is credible to the 
American people.
  Justice Alito cannot stand in judgment of himself. The fact that we 
have to come to the floor of the Senate to plead this case makes it 
clear that there are no avenues to be followed for ethical 
consideration for the Court today. That can change. The bill that is 
pending on the calendar is a step in the right direction, and I totally 
support it.
  Madam President, I close by asking unanimous consent that the letter 
sent to me by Justice Alito be printed in the Congressional Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           Supreme Court of the United States,

                                     Washington, DC, May 29, 2024.
     Hon. Richard J. Durbin,
     Hon. Sheldon Whitehouse,
     U.S. Senate, Washington, DC.
       Dear Senators Durbin and Whitehouse: This is in response to 
     your letter of May 23 to the Chief Justice requesting that he 
     take steps to ensure that I recuse in Trump v. United States, 
     No. 23-939, and any other cases ``related to the 2020 
     presidential election'' or ``the January 6th attack on the 
     Capitol.'' As the Court has pointed out, ``[i]ndividual 
     Justices, rather than the Court, decide recusal issues.'' I 
     am therefore responding directly to your letter. In it, you 
     claim that two incidents involving the flying of flags 
     created an appearance of impropriety that requires my 
     recusal.
       The applicable provision of our Code of Conduct states as 
     follows:
       ``B. DISQUALIFICATION.
       (1) A Justice is presumed impartial and has an obligation 
     to sit unless disqualified.
       (2) A Justice should disqualify himself or herself in a 
     proceeding in which the Justice's impartiality might 
     reasonably be questioned, that is, where an unbiased and 
     reasonable person who is aware of all relevant circumstances 
     would doubt that the Justice could fairly discharge his or 
     her duties.'' Code of Conduct for Justices of the Supreme 
     Court of the United States, Canon 3(B)(1)-(2).
       The two incidents you cite do not meet the conditions for 
     recusal set out in (B)(2), and I therefore have an obligation 
     to sit under (B)(1).
       The first incident cited in your letter concerns the flying 
     of an upside-down American flag outside the house in Virginia 
     where my wife and I reside. In considering whether this event 
     requires recusal, an unbiased and reasonable person would 
     take into account the following facts. As I have stated 
     publicly, I had nothing whatsoever to do with the flying of 
     that flag. I was not even aware of the upside-down flag until 
     it was called to my attention. As soon as I saw it, I asked 
     my wife to take it down, but for several days, she refused.
       My wife and I own our Virginia home jointly. She therefore 
     has the legal right to use the property as she sees fit, and 
     there were no additional steps that I could have taken to 
     have the flag taken down more promptly.
       My wife's reasons for flying the flag are not relevant for 
     present purposes, but I note that she was greatly distressed 
     at the time due, in large part, to a very nasty neighborhood 
     dispute in which I had no involvement. A house on the street 
     displayed a sign attacking her personally, and a man who was 
     living in the house at the time trailed her all the way down 
     the street and berated her in my presence using foul 
     language, including what I regard as the vilest epithet that 
     can be addressed to a woman.
       My wife is a private citizen, and she possesses the same 
     First Amendment rights as every other American. She makes her 
     own decisions, and I have always respected her right to do 
     so. She has made many sacrifices to accommodate my service on 
     the Supreme Court, including the insult of having to endure 
     numerous, loud, obscene, and personally insulting protests in 
     front of our home that continue to this day and now threaten 
     to escalate.
       I am confident that a reasonable person who is not 
     motivated by political or ideological considerations or a 
     desire to affect the outcome of Supreme Court cases would 
     conclude that the events recounted above do not meet the 
     applicable standard for recusal. I am therefore required to 
     reject your request.
       The second incident concerns a flag bearing the legend ``An 
     Appeal to Heaven'' that flew in the backyard of our vacation 
     home in the summer of 2023. I recall that my wife did fly 
     that flag for some period of time, but I do not remember how 
     long it flew. And what is most relevant here, I had no 
     involvement in the decision to fly that flag.
       My wife is fond of flying flags. I am not. My wife was 
     solely responsible for having flagpoles put up at our 
     residence and our vacation home and has flown a wide variety 
     of flags over the years. In addition to the American flag, 
     she has flown other patriotic flags (including a favorite 
     flag thanking veterans), college flags, flags supporting 
     sports teams, state and local flags, flags of nations from 
     which the ancestors of family members came, flags of places 
     we have visited, seasonal flags, and religious flags. I was 
     not familiar with the ``Appeal to Heaven'' flag when my wife 
     flew it. She may have mentioned that it dates back to the 
     American Revolution, and I assumed she was flying it to 
     express a religious and patriotic message. I was not aware of 
     any connection between this historic flag and the ``Stop the 
     Steal Movement,'' and neither was my wife. She did not fly it 
     to associate herself with that or any other group, and the 
     use of an old historic flag by a new group does not 
     necessarily drain that flag of all other meanings.
       As I said in reference to the other flag event, my wife is 
     an independently minded private citizen. She makes her own 
     decisions, and I honor her right to do so. Our vacation home 
     was purchased with money she inherited from her parents and 
     is titled in her name. It is a place, away from Washington, 
     where she should be able to relax.
       A reasonable person who is not motivated by political or 
     ideological considerations or a desire to affect the outcome 
     of Supreme Court cases would conclude that this event does 
     not meet the applicable standard for recusal. I am therefore 
     duty-bound to reject your recusal request.
           Sincerely yours,
                                              Samuel A. Alito, Jr.

  Mr. DURBIN. I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CORNYN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.