Reps. Jamie Raskin (D-Md.) and Alexandria Ocasio-Cortez (D-N.Y.) are asking Chief Justice John Roberts to answer a series of questions about his awareness of an upside-down American flag that flew over Justice Samuel Alito’s home.
Citing reporting from The New York Times, the letter from the two Democrats on the House Oversight and Accountability Committee asks Roberts why Alito was bumped from drafting an opinion on a case, Fischer v. U.S., that ultimately determined prosecutors had erred in indicting numerous Jan. 6, 2021, defendants on charges related to obstructing an official proceeding.
Alito had been set to handle writing the opinion, but Roberts took over four days after the Times revealed a flag associated with Trump’s efforts to block the transfer of power was flown outside Alito’s Virginia home. Alito said his wife had raised the flag because of a dispute with a neighbor.
“Your decision suggests that you recognized that Justice Alito’s partisan ideological activity called into question his impartiality with regard to the Fischer matter,” Raskin, who is the committee’s ranking member, and Ocasio-Cortez wrote in a letter obtained by The Hill.
“Yet, Justice Alito, like Justice Clarence Thomas, whose own ties to the ‘Stop the Steal’ movement are well established, was allowed to participate in the Fischer case, in violation of the Court’s institutional commitment to the principle that a Justice must ‘disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.'”
The court did not immediately respond to request for comment.
The letter, sent just ahead of the court’s new term, asks Roberts to answer a series of questions about the episode, including to provide his rationale for bumping Alito from drafting the opinion and whether he discussed the move with any other justices.
It also asks Roberts when he became aware that Alito flew the inverted flag at his home as well as another raised at his New Jersey vacation home – an Appeal to Heaven flag that has also been associated with Jan. 6.
The letter also asks questions about Thomas, whose wife contacted White House and other officials ahead of the Jan. 6 certification of President Biden’s electoral victory.
The lawmakers ask Roberts to disclose whether he spoke to either justice about the matter, including whether they should recuse themselves.
“By taking the half measure of replacing him as the opinion’s author, instead of requiring him, as well as Justice Thomas, to recuse wholly from the matter, you allowed the Court to violate and defy federal law, the Constitution, and its own Code of Conduct,” they wrote.
“The notion that individual Justices can decide for themselves whether their own conduct violates the Constitution, federal law, or the Court’s Code of Conduct is untenable in our Republic and clearly violates the fundamental and original principle of due process that “no man can be a judge in his own case.”
Raskin and Ocasio-Cortez previously asked the court and the Judicial Conference to weigh in on Thomas’s acceptance of gifts and luxurious trips.
But the duo got only a short reply from Roberts’s attorney.
“The Judicial Conference, which was established in order to provide guidance to and coordination among the lower federal courts, cannot review a Justice’s inherently judicial decision whether to recuse in a case,” Judge Robert Dow, counselor to the chief justice, wrote in a July 12 letter.
“That would place lower federal court judges in the position of supervising the Justices, contrary to the Constitution’s command there be ‘one supreme court.’”
Updated at 12:02 p.m. EDT