What’s Dick Durbin going to do now?
Earlier this week, the New York Times reported that an upside down flag—a symbol for the “Stop the Steal” movement—had been flown outside Samuel Alito‘s home in January 2021. In response, the top Democrat on the Senate Judiciary Committee called for the Supreme Court justice to recuse himself from election subversion cases, but suggested to reporters he was helpless to take more concrete action, given the Republican opposition to ethics reform. “I don’t think there’s much to be gained with a hearing at this point,” Durbin said Monday.
That sense of resignation to a scandal-scarred court wasn’t good enough then. But Durbin’s remarks seem even more lacking now, after the Times revealed Wednesday that Alito’s apparent display of partisanship—which he blamed on his wife—doesn’t end with the upside down flag in 2021: Last summer, yet another pro-symbol of the MAGA-backed insurrection—known as an “Appeal to Heaven” flag—was flown outside his vacation home in New Jersey, pictures of which were taken in July, August, and September of last year, around the time a case related to the January 6 Capitol attack had arrived at the high court. The flag, which has its roots during the Revolutionary War, has been revived in recent years as a symbol of support for former President Donald Trump, and was carried by a number of insurrectionists who stormed the Capitol in his name in an effort to prevent the certification of Joe Biden’s 2020 victory.
Reports of a second far-right, pro-Trump symbol at Alito’s home underscore concerns about his judicial integrity and independence, as well as the broader legitimacy of the Supreme Court, whose six-member conservative majority has frequently acted as something of an enforcement arm of the Republican Party. As a result, Durbin reiterated his call for Alito to recuse himself Wednesday, and for the court to “adopt an enforceable code of conduct.” But he once again stopped short of saying what he’d do to push them.
Durbin has long been critical of the high court, and held a hearing last year—after a corruption scandal erupted around Clarence Thomas—to push for stronger ethics, transparency, and recusal rules. “We think all the justices should be held to the same standard, at least of the other courts in the United States,” Durbin told me at the time. But the effort ran into a brick wall of opposition from the GOP, which accused Democrats of trying to “destroy” the John Roberts court, and that dynamic doesn’t seem to have changed. “We need to leave the Supreme Court alone,” Mitch McConnell, the right-wing majority’s chief architect, said Monday.
With nothing more than some gentle criticism for Alito from a handful of Republicans, as Durbin lamented, the Senate math is not on the side of reform: “There’s no recourse other than impeachment, and we’re not at that point at all,” he told reporters Monday. But that doesn’t mean there’s nothing to be gained from taking action. This is a serious matter, as the senator and his colleagues recognize; as such, it deserves to be taken seriously by serious elected officials, even if their less-serious counterparts stand in the way. “This is not normal,” Maggie Jo Buchanan, managing director of the watchdog Demand Justice, said in a statement Wednesday. “Congress must act.”