Biden has no plan to touch the Alito controversy, even with a 10-foot pole

Top Democrats have no plans to investigate reports that Supreme Court Justice Samuel Alito flew an upside-down American flag outside his home after the 2020 election. And Joe Biden has no desire to even talk about it.

Amid growing demands from the base of the party to call out the actions of several conservative justices and embrace reforms of the court, both the president and the White House have stayed mum.

Biden has publicly warned that Republicans are undermining democratic norms and threatening its institutions. But he is reluctant to extend that argument to the judicial branch, aides say, fearful it could be cast as politically motivated and undermine his broader effort to portray himself as a champion for strengthening democratic institutions. They believe it's crucial to maintain a clear contrast with Donald Trump, who has readily attacked an independent judiciary for political gain.

“The central pushback should come from the legislative branch, and not the executive branch,” said Anthony Coley, a former senior official in the Biden Justice Department, arguing that Congress has wide-ranging investigatory authority. “That’s the right place where we should be seeing aggressive oversight, and right now they are not meeting the moment.”

On the Hill, however, Senate Judiciary Chair Dick Durbin has resisted calls to hold a hearing into the matter. “I don't think that's going to achieve anything,” the Illinois Democrat told POLITICO of calling for Alito to appear, indicating a preference instead for the chamber to consider ethics legislation for the Supreme Court that has already passed his committee. Durbin on Friday sought a meeting with Chief Justice John Roberts to discuss the matter.

The reluctance to directly engage on the Alito controversy has confused and alarmed some Democrats and court reform advocates who argue the Supreme Court justice has not only gifted Biden a prime opportunity to highlight the stakes of the election but that the president has a moral obligation to address it. In certain quarters of the party, there is a belief that Biden’s approach is antiquated and ignores the ways in which Republicans have prioritized and politicized judicial debates.

“The idea that you’re just going to shrug it off and not take action just sends the wrong signal,” said Gabe Roth, executive director of judicial accountability organization Fix the Court. “I don’t quite get the hands-off approach here."

The inverted American flag is a symbol closely associated with the "Stop the Steal" movement behind the efforts to overturn the 2020 election that ultimately spurred the Jan. 6 insurrection. Alito has also reportedly displayed a second flag at his beach house that is also tied to the Stop the Steal campaign, actions that not only violate judicial ethics rules but suggest support for election subversion from a justice with influence over cases related to the election and the Capitol riot.

Roth and other judicial reform activists have spent the last week urging Democrats to vocally condemn Alito's actions and push for a full-scale congressional investigation, warning that giving the justice a pass now will further weaken their ability to hold the court accountable in the future.

"I'm equally worried about what's going with Alito and [Justice Clarence] Thomas as I am with the next generation of judges," Roth said. "It's completely within the president’s authority to talk about judicial ethics."

Biden has long presented himself as an institutionalist loath to veer too deeply into matters of the Supreme Court. He resisted calls during the 2020 campaign to embrace major reforms, including expansion, and, after his election, he punted on the issue by assigning a committee to produce recommendations. Those recommendations were left untouched.

The president has occasionally criticized the court over its legal opinions, including after the issuance of the Dobbs decision that ended the federal right to an abortion. After the Supreme Court's conservative majority voted to effectively end affirmative action in 2023, Biden declared that "this is not a normal court." But the White House has stayed away from the personal controversies involving individual justices: first reports that Thomas had received numerous financial benefits from a prominent Republican donor and now Alito’s flags.

Press secretary Karine Jean-Pierre last week dismissed questions about Alito, telling reporters that she did “not want to get into the business of the specific actions” including whether Supreme Court justices “should recuse themselves.” She offered the White House’s belief “that the American flag should be respected” but didn’t go beyond that. “That is something that we're not going to step into,” she said. “We're not going to comment from here.”

Biden has not raised the issue at all in his public appearances since the first story emerged about the Alitos' house flag. In a statement, his campaign called the Supreme Court proof that "elections matter," but declined to directly address Alito's actions.

"President Biden is proud to have appointed Justice Ketanji Brown Jackson and over 200 federal judges to the bench who will stand up for democracy, the constitution and reflect the values of the American people," spokesperson TJ Ducklo said. "Donald Trump appointed justices who overturned Roe. Those are the stakes this November."

The recalcitrance stands in contrast to some members of the Democratic Party who have signaled that they believe Alito should be scrutinized — and that doing so would fall well within Biden’s mantra that the public (lawmakers included) needed to be more clear-eyed about the erosion of democratic institutions.

Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee, urged Durbin to demand both Alito and Roberts appear for testimony.

“I’m under no illusions that Alito will appear before the Judiciary Committee, but the chief justice should feel an obligation to do so,” he said in a brief interview.

House Minority Leader Hakeem Jeffries on Thursday said of Alito and Thomas: they “are totally out of control.”

And Demand Justice, an advocacy group that has aggressively pushed Democrats to embrace judicial reforms, launched an ad campaign aimed at pressuring Durbin to open an oversight investigation.

"There's a danger of Congress not doing everything in their power to shine a light on Alito and the court's handling of his conduct," said Maggie Jo Buchanan, the managing director at Demand Justice. "If you don't, then you're really risking our democracy."

Beyond holding hearings into the matter, there is little that Democrats in Congress can effectively do with respect to the reports around Alito’s flags (the legislative branch has the power of impeachment but no one imagines it would be used). The Supreme Court is responsible, largely, for policing itself. The White House does not have the power to hold hearings.

But the president does enjoy the bully pulpit, one he's often used to argue that Trump and his allies pose a unique threat to American democracy. Biden has asserted on several occasions that Trump will not accept the outcome of November's election if he loses, and that his supporters are setting the stage for another attempt at overturning the results.

Biden, to that end, has exhorted the media to focus more on the stakes of the presidential race and cover Trump as the leader of a movement that poses a danger to the rule of law.

"I'm sincerely not asking of you to take sides, but asking you to rise up to the seriousness of the moment," Biden said last month at the White House Correspondents' Dinner. "Every single one of us has roles to play — a serious role to play in making sure democracy endures."

It's an admonishment Democratic lawmakers have taken up as well, most recently in urging the press to magnify its scrutiny of Alito's actions.

"I'm frankly surprised that the press hasn't put this on the front pages," said Sen. Chris Murphy, who complained he's had difficulty finding any coverage in major newspapers. "I worry that everybody is getting anesthetized to the corruption on the Supreme Court."

Yet pressed on the role Biden should play in amplifying the implications of Alito's flag flying, Murphy and others critical of the episode shrugged off the idea the president shouldered any particular responsibility to respond.

"I think the president has a lot to worry about," said Murphy, who has called for the Senate to hold hearings. "We shouldn't be taking instructions from the White House, we should be doing that on our own."

Still, others harbor concerns that Biden is missing an opening to demonstrate that his threat-to-democracy rhetoric is not merely hypothetical. The president, they contend, has forcefully argued for voters across the spectrum to prioritize the stability of American institutions over their personal politics in the coming election.

Now, given the opportunity, he should be vocal in showing them why.

"This Supreme Court really has lost the people's trust that it will be unbiased on issues of presidential elections, of the election of 2020 and potentially the coming election," said Noah Bookbinder, president of ethics watchdog Citizens for Responsibility and Ethics in Washington. "Normally I would push for restraint from the president. But this time, there's a real argument that maybe this is not the moment for restraint."

Anthony Adragna contributed reporting.