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Durbin Addresses the Supreme Court's Ethical Crisis in a Speech on the Senate Floor

Durbin: Justice Alito cannot credibly claim to be an umpire calling balls and strikes in these cases. He has donned the jersey of his favorite team.

WASHINGTON – In a speech on the Senate floor today, U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, addressed the Supreme Court’s ethical crisis and cautioned that we cannot afford further erosion of public confidence in our courts. Durbin’s speech follows Supreme Court Justice Samuel Alito’s refusal to recuse himself from cases concerning the 2020 election and the January 6th insurrection. The justice’s refusal comes in response to a letter Durbin and U.S. Senator Sheldon Whitehouse (D-RI), Chair of the Judiciary Subcommittee on Federal Courts, sent to Chief Justice John Roberts two weeks ago imploring the Chief Justice to take appropriate steps to ensure Justice Alito recused himself from these cases.

The Senators’ letter came on the heels of two reports from the New York Times that Justice Alito flew, at two separate residences, flags that were carried by insurrectionists at the Capitol on January 6th.

“I’ll never forget what happened in this chamber on January 6, 2021. Violent extremists stormed the Capitol to prevent certification of the 2020 presidential election. Donald Trump was engaged in the ‘Big Lie,’” said Durbin. “His insurrectionists ransacked this building. Many carried flags and banners to show their support for former President Trump and his effort to overturn the election, the ‘Big Lie.’ Two of the more prominent symbols of the so-called ‘Stop the Steal’ campaign on behalf of President Trump were on display that day. One was an American flag flown upside down. The other a so-called ‘Appeal to Heaven’ flag. While the events of January 6 were hard to imagine, reports that the same battle flags flew outside Supreme Court Justice Samuel Alito’s homes were nearly as shocking… While these flags may have once held other meanings, in the year 2021, they were closely associated with election deniers and extreme right-wing politicians. They are in fact the battle flags of Trump’s MAGA movement.”

Durbin continued, “The flying of these flags marks a new disturbing chapter in the Supreme Court’s ongoing ethical crisis. It suggests that Justice Alito has not only chosen sides in an ongoing political dispute, but he’s also announced his allegiance in pending legal disputes. As we speak, the Supreme Court is considering two critical cases relating to the 2020 presidential election and the January 6 insurrection… The Court’s ruling on these issues will be critical to ensuring that those responsible for one of the darkest chapters in our history are held accountable. But displaying the upside-down American flag and ‘Appeal to Heaven’ flag creates the appearance that Justice Alito has already aligned himself with the ‘Stop the Steal’ campaign. He cannot credibly claim to be an umpire calling balls and strikes in these cases. He has donned the jersey of his favorite team. That’s why I called on Justice Alito to recuse himself and why I urged Chief Justice Roberts to finally step up and take the steps necessary to ensure that Justice Alito does not sit on those cases and rather that he recuses himself.”

Durbin went on to describe the longstanding oversight effort that Senate Judiciary Committee Democrats are engaged in to ensure transparency and accountability at the Supreme Court and in the federal judiciary. 

“We cannot afford further erosion of public confidence in our courts. Our faith in the impartiality of judges is essential to the functioning of our legal system and our democratic form of government,” said Durbin. “The Senate and the American people deserve to know the full extent of how immense wealth is used to buy private access to the justices. That’s why the Senate Judiciary Committee is exercising its constitutional authority to investigate what has been provided to the justices, and I will continue to push for legislation… to establish a binding code of conduct and recusal standards for the justices.”

Durbin concluded, “Last year, the Judiciary Committee reported to the floor the Supreme Court Ethics, Recusal, and Transparency Act. Importantly, this legislation’s ethical and recusal requirement would apply equally to every justice of the Supreme Court regardless of the party of the President who appointed them. The Supreme Court has failed to act to address the ethical crisis that has engulfed it, and the Senate must do so. It is a simple fact: there is a Chief Justice of the Supreme Court, John Roberts. It is within his power to resolve this ethical issue tonight, to have it done by the morning to make it clear that the Supreme Court is taking a different course, one that is credible to the American people. Justice Alito cannot stand in judgment of himself… The bill that is pending on the calendar is a step in the right direction, and I totally support it.”

Durbin has continuously called for the passage of the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, legislation that the Senate Judiciary Committee advanced last July. The bill would require Supreme Court justices to adopt a binding code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, and require justices to explain their recusal decisions to the public. And Durbin has been calling on the Supreme Court to adopt an enforceable code of conduct for more than a decade. He first sent a letter to the Chief Justice on this issue more than 12 years ago. 

Video of Durbin’s remarks on the Senate floor is available here.

Audio of Durbin’s remarks on the Senate floor is available here.

Footage of Durbin’s remarks on the Senate floor is available here for TV Stations.