Sen. Dick Durbin says Justice Alito should recuse in Trump cases because of upside-down flag

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.

In an emailed statement to the Times, Alito didn't deny that the flag outside his house flew upside-down and said it wasn't his decision.

“I had no involvement whatsoever in the flying of the flag,” Alito said. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

The Times said interviews showed Alito's wife, Martha-Ann Alito, had been in a dispute with neighbors on the same block who displayed an anti-Trump sign on their lawn.

Fox News' Shannon Bream said that Alito told her the disagreement started after a neighbor displayed a "F--- Trump" sign on their lawn, which was within 50 feet of a school bus stop. According to Bream, Alito said that after his wife brought it up to their neighbor, the neighbor put up a sign blaming Alito's wife for the insurrection.

The justice said the neighbor later addressed his wife using vulgar language, "including the c-word," according to Bream. After that, Alito said his wife was distraught and hung the flag upside down "for a short time."

Stephen Gillers, an expert on judicial ethics at New York University School of Law, said he doubted Alito knew the relationship of the upside-down flag to the "Stop the Steal" movement.

“While Alito’s explanation for how it happened is hard to believe, it is more credible than the view that he knowingly chose to fly the flag upside down knowing its meaning,” Gillers said. Based on what has been reported, Alito would not be required to recuse, Gillers added.

The recently adopted Supreme Court code of ethics states that justices shouldn't engage in political activity and justices are supposed to step aside from cases if their impartiality can be questioned. The code, however, is only self-enforcing.

Charles Geyh, a professor at Indiana University Maurer School of Law, said the likelihood Alito will recuse himself in those cases “is at or near zero.”

He added that recent research confirms the Supreme Court’s legitimacy is declining “because the Court is perceived as being driven less by the rule of law than by ideological agendas.” Gillers said of Alito’s case, “This doesn’t help.”

This article was originally published on NBCNews.com