Durbin’s statement came after a report said an upside-down American flag flew outside Alito’s home days after the Jan. 6 Capitol riot and before Biden’s inauguration.

May 17, 2024, 11:01 AM PDT
By Rebecca Shabad and Lawrence Hurley

WASHINGTON — Senate Majority Whip Dick Durbin, D-Ill., said Friday that Supreme Court Justice Samuel Alito should recuse himself from cases related to the 2020 election after a new report said an upside-down American flag flew outside his home in the days after the Jan. 6, 2021, attack on the Capitol and before President Joe Biden's inauguration.

Some Trump supporters who were present at the Jan. 6 riot, fueled by former President Donald Trump's baseless claims that he had won the 2020 election, appear to have similarly displayed the flag around the time of Jan. 6 attack.

“Flying an upside-down American flag — a symbol of the so-called ‘Stop the Steal’ movement — clearly creates the appearance of bias. Justice Alito should recuse himself immediately from cases related to the 2020 election and the January 6th insurrection," Durbin, chairman of the Senate Judiciary Committee, said in a statement.

The Supreme Court is currently weighing two cases that touch upon Jan 6: Trump's presidential immunity claim in his election interference case, and an appeal brought by a man prosecuted for his role on the day when a mob of Trump supporters charged the U.S. Capitol. Rulings are due by the end of June.

The New York Times reported Thursday that it had obtained photographs from the period after the 2020 election and conducted interviews with Alito's neighbors. The images showed, the Times said, that the flag flew upside-down outside his home on Jan. 17, 2021, three days before Biden's inauguration.

The Supreme Court didn’t respond to multiple requests for comment by NBC News.

The report was the latest in a series of news stories that have raised questions about the court's ethical standards, with Alito and fellow conservative Justice Clarence Thomas frequent targets. Thomas has not stepped aside from the two Jan. 6 cases despite that fact that his wife, conservative activist Virginia "Ginni" Thomas, backed Trump's efforts to overturn the election results.

In 2016, liberal Justice Ruth Bader Ginsburg faced considerable criticism, and later apologized, when she was critical of then-presidential candidate Trump in several media interviews, calling him a "faker" among other things. She did not step aside from any cases involving Trump or his administration.

An upside-down U.S. flag is used as a symbol of distress, according to U.S. flag code. Oath Keeper Jason Dolan — who pleaded guilty in 2022 to Jan. 6-related crimes — also flew an upside-down American flag outside his Florida home in January 2021. Photos taken outside the Capitol during the riot show an attendee waving an upside-down flag. The Times also cited some Twitter accounts that recommended flying the flag upside down as a sign of distress after the 2020 election.

It is unclear how broadly the symbol was otherwise used in the Stop the Steal movement or if the Alitos knew about the possible connection to Stop the Steal.

The Times said it obtained the photos from neighbors who noticed the flag and took photos. The Times' report said that employees at the high court heard about it.