A top Senate Democratic poured cold water on calls to subpoena Supreme Court Justice Samuel Alito, who is facing questions about alleged ethics violations.
Alito is facing mounting criticism that began after The New York Times reported that he flew an upside-down American flag outside his Virginia home in January 2021. The inverted flag has been associated with former President Donald Trump's unproven claims about election fraud in the 2020 election, and some of his supporters displayed the symbol while storming the U.S. Capitol on January 6.
Alito said his wife had raised the inverted flag during a dispute with their neighbors over an anti-Trump lawn sign and has declined to recuse himself from cases related to the Capitol riot.
He is also facing scrutiny after being heard in a secret audio tape agreeing that the United States should return "to a place of godliness."
These controversies have culminated in calls for lawmakers to investigate Alito in recent weeks, as his critics argue they constitute ethics violations.
However, Senator Dick Durbin, the Illinois Democrat who chairs the Senate Judiciary Committee, told HuffPost over the weekend that his committee cannot subpoena Justice Alito.
"Quite honestly, subpoenaing a Supreme Court justice is not in the cards. It's not going to happen," Durbin said, pointing to the Senate rules he said would prevent the body from issuing a subpoena against Alito.
He cast doubt there would be enough votes in the Senate to subpoena Alito, as it would require 60 votes to approve, adding that he does not have the legal ability to enforce a subpoena against the justices.
"If they tear it up in front of me, there's little I can do other than say, 'You're missing an opportunity if you have a story to tell.' That's the best we can do," he said.
Newsweek reached out to Durbin's office for comment via email.
Durbin's remarks drew criticism on X, formerly Twitter.
"If you don't want a subpoena showdown with Alito, hold hearings where the neighbors and other witnesses testify and leave an empty chair for the Justice," wrote political commentator Matthew Yglesias.
"Geriatric Dems are committed to weakness like it's an ideology," writer David Roberts posted.
Laurence Tribe, a legal analyst and emeritus professor of constitutional law at Harvard Law School, called for Durbin to subpoena Alito in May.
"Talk is cheap. Chairman Dick Durbin needs to do more than call on Alito to recuse himself from the insurrection cases. Durbin needs to step up and use the subpoena power to demand Alito's appearance and explanation before the Senate Judiciary Committee!" Tribe posted on X.
While Durbin is resisting calls to subpoena Alito, he voiced criticism of the justice following the report from The New York Times.
"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, including the question of the former President's immunity in U.S. v. Donald Trump, which the Supreme Court is currently considering," Durbin wrote in a statement.
He has also said the Alito controversy highlights a need for an enforceable code of conduct for the Supreme Court.
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About the writer
Andrew Stanton is a Newsweek weekend reporter based in Maine. His role is reporting on U.S. politics and social issues. ... Read more
