SCOTUS Chief Roberts pressured to force Alito recusal ahead of Trump immunity decision

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Sen. Tom Cotton rips 'partisan smear' of Justice Alito over Appeal to Heaven flag

Sen. Tom Cotton joins 'Outnumbered' to discuss testimony from former Fauci adviser Dr. David Morens on the NIH's COVID response and the 'controversy' around Justice Alito's decision to fly An Appeal to Heaven flag at his beach house.

Supreme Court Chief Justice John Roberts is facing pressure to ensure that Justice Samuel Alito recuses himself from any 2020 election-related cases in the wake of controversy over flags flown at his two homes around the time of the January 6, 2021 Capitol riot. 

"By displaying the upside-down and ‘Appeal to Heaven’ flags outside his homes, Justice Alito actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promotes public confidence in the impartiality of the judiciary," wrote Senate Judiciary Committee Chairman Dick Durbin, D-Ill., and Chairman of the Judiciary Subcommittee on Federal Courts Sheldon Whitehouse, D-R.I., in a letter to Roberts. 

The lawmakers additionally requested a meeting with the chief justice "as soon as possible." 

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Dick Durbin requested a meeting with Chief Justice John Roberts to ensure that Justice Samuel Alito recuses himself from election-related cases.  (Getty Images)

Two recent reports revealed that Alito's home flew an upside down American flag shortly after the Capitol riot, and that his vacation home flew an "Appeal to Heaven" flag, as first reported by the New York Times. 

According to Durbin and Whitehouse, "He also created reasonable doubt about his impartiality and his ability to fairly discharge his duties in cases related to the 2020 presidential election and January 6th attack on the Capitol. His recusal in these matters is both necessary and required."

The Supreme Court has yet to release a decision in the matter of former President Trump's immunity claim in his federal election-interference case. Alito's inclusion in such a matter on the 6-3 conservative majority court could be a determining factor.

The Democratic senators also renewed their call on the court to "adopt an enforceable code of conduct for Supreme Court justices." Until then, they said they would continue advocating for legislation enforcing such a code for the court to be passed. They touted the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which would require the Supreme Court to create an ethics code that is publicly available. It would further allow complaints to be lodged against justices and for a judicial investigation panel to review them. 

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Durbin called on Alito to recuse himself after the first report. (AP Photo/Susan Walsh, Pool)

After the first report of Alito's home near Washington, D.C., flying an upside down flag, which traditionally symbolizes a nation in crisis but was also used by some during the Capitol riot, the justice explained to Fox News's Shannon Bream that his wife had chosen to briefly flip the flag after a heated dispute with "political" neighbors. 

Many Republicans came to Alito's defense after the second report connected the "Appeal to Heaven" flag to the January 6, 2021, Capitol riot. 

According to the U.S. military's website, documenting the history of navy vessels, the "An Appeal to Heaven" flag was flown aboard Massachusetts state navy vessels and is also known for being flown by schooners that were directed by President George Washington in his capacity as commander-in-chief of the Continental Army. 

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Crowds arrive for the ‘Stop the Steal’ rally on January 6, 2021, in Washington, DC. Trump supporters gathered in the nation's capital today to protest the ratification of President-elect Joe Biden's Electoral College victory over President Trump in the 2020 election. An ‘Appeal to Heaven’ flag is seen being flown by a supporter. (Spencer Platt/Getty Images)

The motto refers to a quote from English philosopher John Locke, in which he said, "And where the Body of the People, or any single Man, is deprived of their Right, or is under the Exercise of a power without right, and have no Appeal on Earth, there they have a liberty to appeal to Heaven, whenever they judge the Cause of sufficient moment."

The phrase "appeal to heaven" is understood to be a reference to colonists fighting back against the King of England's tyranny. 

Sen. Tom Cotton, R-Ark., shared on X on Thursday that he has the historic flag outside his Senate office. "I stand with George Washington and Martha-Ann Alito over pearl-clutching libs at the New York Times and Democrats in Congress," he said.

Sen. Mike Lee, R-Utah, echoed Cotton's sentiment, writing in response, "Martha-Ann Alito = American patriot," referencing the justice's wife. 

The flag is similarly flown outside the personal House office of Speaker Mike Johnson, R-La.

Fox News Digital reached out to the Supreme Court for comments from both Roberts and Alito. 

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The Supreme Court has a 6-3 conservative majority.  (Collection of the Supreme Court of the United States via Getty Images)

The revelation of the flags at Alito's homes has also prompted some progressive Democrats to renew their calls for the party to expand the Supreme Court, allowing the confirmation of more Democrats. 

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"Justice Alito must recuse himself from anything related to the January 6th insurrection and we must expand the Court to ensure that Donald Trump’s stolen seats don’t dismantle our democracy," wrote Sen. Ed Markey, D-Mass., on X. 

Sen. Tina Smith, D-Minn., made her own call to expand the Supreme Court, writing on X, "Alito proves yet again why we can’t just sit on our hands and turn a blind eye as right-wing extremists run the highest Court in the land."