By Glynn Wilson –

WASHINGTON, D.C. — Democrats on Capitol Hill are demanding that religious conservative Supreme Court Justice Sam Alito recuse himself on all cases related to Donald Trump’s incited insurrection on Jan. 6, 2021, including the immunity motion before the court, after it was reported that an upside down American flag was photographed flying outside Alito’s home in Alexandria, Virginia after the 2020 election and after the riot at the Capitol.

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On Thursday, the New York Times published a followup story proving that the Alito’s also flew another provocative pro-Trump “Stop the Steal” flag at their vacation house in New Jersey. The “Appeal to Heaven” flag, like the inverted U.S. flag, was carried by rioters at the Capitol on Jan. 6, 2021. It’s also known as the Pine Tree flag. It dates back to the Revolutionary War, but largely fell into obscurity until recent years and is now a symbol of support for Trump, representing a religious strand of the “Stop the Steal” MAGA movement and for a push to remake American government in Christian terms, obliterating the Constitutional principle of the separation of church and state.

About 50 House Democrats called on Alito to recuse himself from Jan. 6-related cases in a letter, questioning whether he could be impartial.

Hank Johnson of Georgia, the ranking Democrat on the House Judiciary Committee, released the letter demanding that Alito recuse himself and decline to participate in deciding a pair of major cases before the court: whether Trump enjoys some immunity from criminal prosecution for his efforts to remain in office after losing the 2020 election, and whether the Justice Department should be allowed to use an obstruction charge to prosecute more than 300 Jan. 6 insurrectionists.

“Reasonable people will doubt that you can be impartial in deciding whether Mr. Trump should face criminal prosecution for his actions arising from the ‘Stop the Steal’ movement,” the group wrote. “This indisputable appearance of a conflict of interest requires that you recuse yourself.”

Democratic Whip Katherine Clark of Massachusetts also released a statement about the story.

“Justice Alito has displayed flags at his homes that support insurrection against our government, promote religious nationalism, and attack free and fair elections,” Clark said. “This is not just another example of extremism that has overtaken conservatism. This is a threat to the rule of law and a serious breach of ethics, integrity, and Justice Alito’s oath of office.

“At minimum, he must recuse himself from any cases involving January 6th, Donald Trump, and the security of our elections,” she said. “Anything less will tarnish our judicial system and democracy.”

Alito did not immediately respond to a request for comment about the letter from lawmakers, which also called on Justice Clarence Thomas to recuse himself from Jan. 6 and 2020 election-interference cases. Thomas’s wife, Virginia “Ginni” Thomas, pressed Trump White House officials to overturn the results of the 2020 election and was later called to testify before the House committee investigating Jan. 6. Ginni Thomas has denied discussing her post-election activities with her husband, and the justice has not recused.

While the letter demanding Alito’s recusal was from Democrats, a handful of Republicans also criticized him over the flag, including the top Republican on the Senate Judiciary Committee, Lindsey Graham of South Carolina, who said it was “mistake.”

“It creates a bad image,” Graham said on CNN. “It created a situation that we’re all talking about. So, yeah, I think it was a mistake.”

Utah Republican Senator Mitt Romney also expressed concerns about the flag.

“It’s very unfortunate and we ought to take a look at it,” he said to reporters on Capitol Hill.

Senate Majority Leader Chuck Schumer said the flag outside the Alito’s home “was really the wrong thing to do and it casts some doubt” on the justice’s impartiality.

Schumer said he is in discussions with Senate Judiciary Chairman Dick Durbin of Illinois about next steps and the possibility of holding a full Senate vote on legislation that would impose a code of ethics on the court. That bill would face strong opposition from Republican lawmakers and likely fall short of the necessary 60 votes.

Earlier this term, Alito rejected calls from Democratic lawmakers to recuse from a case because of his ties to a lawyer representing a Washington state couple that is behind a challenge to a provision of Trump’s 2017 tax package. In that case, Democrats cited a potential conflict of interest because attorney David B. Rivkin twice interviewed Alito for articles that appeared on the Wall Street Journal editorial page. In a statement attached to the court’s routine orders list, Alito dismissed calls for his recusal, writing that he and Rivkin never discussed any issue in the tax case and that Rivkin’s involvement in the litigation was disclosed in the second article.

At the time, Durbin said Alito had crossed an ethical line in giving two interviews to Rivkin and a Journal editorial page editor while Rivkin was representing the couple seeking Supreme Court review of a tax case. The court heard the couple’s case in December and has yet to issue a ruling.

Alito declined to respond to questions about the beach house flag, including what it was intended to convey and how it comported with his obligations as a justice. The court also declined to respond.

The disclosure about the new flag is troubling, several ethics experts said in interviews, because it ties Justice Alito more closely to symbols associated with the attempted election subversion on Jan. 6, and because it was displayed as the obstruction case was first coming for consideration by the court.

Judges are not supposed to give any impression of bias, yet the flag could be seen as telegraphing the Alitos’ views — and at a time when the justices were on the cusp of adopting a new ethics code.

“We all have our biases, but the good judge fights against them,” said Charles Geyh, a law professor at Indiana University Bloomington. “When a judge celebrates his predispositions by hoisting them on a flag, that’s deeply disturbing.”

Records obtained by the Times show that the Alitos have owned the beach house since 2014, and he is a well-known presence in the waterfront community. Residents said they recalled seeing the justice last summer, though it is unclear how much time he spent there. Neighbors said that once they realized what the flag signified, they were surprised to see it displayed. The six people who shared their accounts and photographs asked not to be identified because they didn’t want to antagonize a longtime neighbor. When Times reporters visited the house on Wednesday, the flagpole was bare.

Appeal to Heaven

Until about a decade ago, the Appeal to Heaven flag was mostly a historical relic. But since then it has been revived to represent “a theological vision of what the United States should be and how it should be governed,” said Matthew Taylor, a religion scholar at the Institute of Islamic, Christian and Jewish Studies. He is also the author of a forthcoming book tracing how a right-wing Christian author and speaker who repopularized the flag helped propel Trump’s attempt to overturn the election.

That figure, Dutch Sheets, has led a yearslong campaign to present the flag to political figures, including Sarah Palin, the former Alaska governor and vice-presidential pick, and an Indiana gubernatorial candidate whom Sheets wrapped in the flag at a recent rally. Republican members of Congress and state officials have displayed the flag as well, among them Doug Mastriano, a Pennsylvania state senator and a leader of the “Stop the Steal” campaign. The highest-ranking elected official known to show the flag is Representative Mike Johnson, who hung it at his office last fall shortly after becoming speaker of the House.

A spokesman for Johnson said that the speaker “has long appreciated the rich history of the flag, as it was first used by General George Washington during the Revolutionary War.” It was a gift, the spokesman said, from Pastor Dan Cummins, a guest chaplain for the House.

Since its creation during the American Revolution, the flag has carried a message of defiance: The phrase “appeal to heaven” comes from the 17th-century philosopher John Locke, who wrote of a responsibility to rebel, even use violence, to overthrow unjust rule.

“It’s a paraphrase for trial by arms,” Anthony Grafton, a historian at Princeton University, said in an interview. “The main point is that there’s no appeal, there’s no one else you can ask for help or a judgment.”

In 2013, Sheets, a prominent figure in a far-right evangelical movement that scholars have called the New Apostolic Reformation, discovered the nearly forgotten flag and made it the symbol of his ambitions to steep the country and the government in Christianity, he wrote in a 2015 book also titled “An Appeal to Heaven.”

“Rally to the flag,” he wrote. “God has resurrected it for such a time as this. Wave it outwardly: wear it inwardly. Appeal to heaven daily for a spiritual revolution that will knock out the Goliaths of our day.”

He placed the high court at the center of his mission. In 2015, the court’s ruling that states must allow same-sex marriage had galvanized the movement and helped it to grow. In a speech three years later, he said, “There’s no gate that has allowed more evil to enter our nation than that of the Supreme Court.”

Alto: Great White Christian Hope

But Sheets and fellow leaders described Justice Alito, the member of the court most committed to expanding the role of faith in public life, as their great hope: a vocal defender of religious liberty and opponent of the right to abortion and same-sex marriage.

“You can’t say that marriage is a union between one man and one woman,” the justice said in a 2020 speech. “Until very recently that’s what the vast majority of Americans thought. Now it’s considered bigotry,” he said, a point he had made strongly in his dissent to the ruling.

The religious leaders cast Trump as another of their heroes. A few weeks before the 2020 election, at a Las Vegas megachurch prayer service for his second term, a pastor from the group presented Trump with an “Appeal to Heaven” flag from the stage. When he lost, Sheets and a team of others formed an instant, ad hoc religious arm of the “Stop the Steal” campaign, blitzing swing state megachurches, broadcasting the services at each stop and drawing hundreds of thousands of viewers.

On Jan. 6, the “Appeal to Heaven” flag was prominent: at the Washington Monument, where throngs gathered to hear President Trump deliver a speech contesting the election results, and later above the angry mob that surrounded the Capitol. The flag was visible above clashes with law enforcement on the building’s west terrace, as rioters breached police lines underneath the scaffolding set up for President Biden’s inauguration, and finally, inside the building.

By that day, scholars say, the flag had become popular enough to sometimes be used by a few other groups, including militia members. But most often, they said, it is tied directly to Sheets, his contemporaries and adherents and their vision for a Christian America.

Last October, soon after the flag was last documented at the Alito beach home, Sheets devoted a prayer session to the court, this time sounding triumphant. He cited the Dobbs decision, overturning the federal right to abortion, in which the majority decision had been written by Justice Alito.

“We have reached another phase in the process of shifting the Supreme Court,” he announced. Through the justices, he said, “God’s intent for institutions of government can now be fulfilled.”

But like other religious zealots who support the dismantling of democracy and its replacement with a White, Christian, authoritarian system, Trump, Sheets, Johnson and Alito must fail in their quest — if American democracy is to survive and thrive.

Here’s the full text of the letter.

The Honorable Samuel Alito
Associate Justice
Supreme Court of the United States
1 First Street NE
Washington, DC 20543

Dear Justice Alito:

Today, we are compelled to request that you recuse yourself from any further participation in the cases of Trump v. United States, Fischer v. United States, and any other cases that may arise from the events surrounding January 6 or the 2020 election. A New York Times report revealed that on and around January 17, 2021, between the January 6 insurrection and the inauguration of President Biden, an inverted United States flag was photographed flying from the front lawn of your personal residence. You have acknowledged that the photograph is accurate, and the inverted flag was hung at your house in response to a political statement from a neighbor.

It is incontrovertible that at the time the upside-down flag flew from your front lawn, “Stop the Steal” activists had adopted the inverted flag as their symbol of protest. Their belief that widespread election fraud had thrown the election from former President Trump to then President-Elect Biden has never been supported by any evidence.

United States Code Title 4 Section 8(a) mandates that “The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.” No such dire distress was in existence at the time the inverted flag flew from your front yard. Indeed, your own public statement attempts to pass responsibility to your wife, but you nonetheless acknowledge that it was a political statement in support of Donald Trump’s effort to overturn the 2020 election. Even if you had “no involvement” in the display yourself, the fact of such a political statement at your home creates, at minimum, the appearance of improper political bias. According to Canon 5 of the recently promulgated, non-binding, non-enforceable U.S. Supreme Court ethics guidelines, on which you are listed as a signatory, a Justice “should refrain from political activity.” In fact, the Court’s own employee guidelines explicitly prohibit public displays of political views – including yard signs and bumper stickers — because they create an appearance of a conflict of interest.

Canon 2 of the Court’s ethics guidelines states that “a Justice should avoid impropriety and the appearance of impropriety in all activities.” More prescriptively, in Canon 3B, the guidelines declare that “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.” The guidelines detail such instances, including those in which “The Justice has a personal bias or prejudice concerning a party.”

Currently, there are two cases before the Court involving January 6 rioters and the felony charge of obstructing an official proceeding: the former president’s claim that a president of the United States has absolute criminal immunity for any official acts (Trump v. United States), and another case involving January 6 rioters (Fischer v. United States). Reasonable people will doubt that you can be impartial in deciding whether Mr. Trump should face criminal prosecution for his actions arising from the “Stop the Steal” movement. Accordingly, this indisputable appearance of a conflict of interest requires that you recuse yourself from these two cases.

Sadly, you are now the second justice who has demonstrated at least an appearance of a conflict of interest related to the events surrounding the January 6 insurrection. In the aftermath of the 2020 election, text messages revealed that Virginia ‘Ginni’ Thomas, the wife of Justice Clarence Thomas, was actively strategizing with the White House chief of staff about how to overturn the election results and attending the January 6 “Stop the Steal” rally — precisely the same underlying conduct charged in Trump and Fischer. Although Justice Thomas seemingly acknowledged this conflict of interest by recusing himself from the Court’s case related to Trump attorney John Eastman, he has shockingly refused to recuse himself from Trump and Fischer.

Undoubtedly, public trust and confidence in the Supreme Court is in shambles, which jeopardizes our democracy and the Rule of Law upon which it is based. And given that your decisions in Trump and Fischer will profoundly affect the future of a past and potentially future President, and of democracy itself, it is essential that the Court attempt to bolster the public’s trust in the integrity of the Court. Thus, given your voluntary agreement to comply with the U.S. Supreme Court’s ethics guidelines, and most importantly, in order to protect the legitimacy of the Court’s ultimate decision in these historic cases, it is clear that both you and Justice Thomas must recuse yourselves from participating any further in these, or any other cases, related to January 6 or the 2020 election.

CC: Chief Justice John Roberts
Associate Justice Clarence Thomas

Sincerely,

Rep. Hank Johnson (GA-04), Rep. Dan Goldman (NY-10), Rep. Adam B. Schiff (CA-30), Rep. Jamie Raskin (MD-08), Rep. Madelein Dean (PA-04), Rep. Jasmine Crockett (TX-30), Rep. Becca Balint (VT-At Large), Rep. Nanette Barragán (CA-44), Rep. Brendan F. Boyle (PA-02), Rep. Cori Bush (MO-01), Rep. Sean Casten (IL-06), Rep. Steve Cohen (TN-09), Rep. Danny Davis (IL-07), Rep. Mark DeSaulnier (CA-10), Rep. Lloyd Doggett (TX-37), Rep. Veronic Escobar (TX-16), Rep. Adriano Espaillat (NY-13), Rep. Maxwell Frost (FL-10), Rep. Jesús G. “Chuy” García (IL-04), Rep. Sylvia R. Garcia (TX-29), Rep. Raùl M. Grijalva (AZ-07), Rep. Glenn Ivey (MD-04), Rep. Pramila Jayapal (WA-07), Rep. Sheila Jackson-Lee (TX-18), Rep. Daniel T. Kildee (MI-08), Rep. Barbara Lee (CA-12), Rep. Ted W. Lieu (CA-36), Rep. Jennifer McClellan (VA-04), Rep. Eleanor Holmes Norton (DC), Rep. Chellie Pingree (ME-01), Rep. Mark Pocan (WI-02), Rep. Ayanna Pressley (MA-07), Rep. Delia Ramirez (IL-03), Rep. Deborah K. Ross (NC-02), Rep. Andrea Salinas (OR-06), Rep. Jan Schakowsky (IL-09), Rep. Mikie Sherrill (NJ-11), Rep. Melanie Stansbury (NM-01), Rep. Eric Swalwell (CA-14), Rep. Rashida Tlaib (MI-12), Rep. Jill Tokuda (HI-02), Rep. Paul Tonko (NY-20), Rep. Bonnie Watson Coleman (NJ-12), Rep. Nikema Williams (GA-05), Rep. Frederica Wilson (FL-24).

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