Left-leaning activists and members of Congress this week continued pressing their demand that Supreme Court Associate Justice Samuel Alito recuse himself from cases related to the 2020 presidential election and the storming of the U.S. Capitol on January 6, 2021. Alito had refused a request from senior Senate Democrats that he do so.
The calls for Alito to step aside followed news reports that flags associated with right-wing activist groups and the effort to overturn President Joe Biden’s 2020 victory over former President Donald Trump were flown outside homes owned by the associate justice’s family.
While Alito has asserted he had nothing to do with the decision to fly the flags and therefore is not obliged to recuse himself, a number of progressive organizations and members of Congress have argued that at a minimum, the flags create the appearance of a conflict of interest when it comes to cases related to the attack on the Capitol.
The Supreme Court is currently considering a case in which Trump has asserted he is immune from prosecution for his role in fomenting the attack on the Capitol, and another in which the validity of charges brought against dozens of participants in the attack is being challenged.
Demand for ethics standards
In a letter to Senate Judiciary Committee Chairman Dick Durbin on Wednesday, a group of more than two dozen advocacy organizations, including the Center for American Progress, MoveOn and People for the American Way, demanded that the Senate launch an investigation of Alito and move forward with binding ethics rules for the Supreme Court.
Currently, the members of the high court are not bound by any ethics requirements, though they have all signed on to a “code of conduct” under which individual justices police their own decisions about issues like conflicts of interest and recusal.
“We agree with you that Justice Alito must recuse himself and that Congress should pass a law that places binding ethics requirements on Supreme Court justices,” the groups wrote. “Justice Alito’s clear lapses in judgment call into serious question his ability to fairly judge cases concerning the 2020 election and later attack on the U.S. Capitol, as well as his basic loyalty to our nation and its laws.”
On Thursday, Representative Jamie Raskin, the senior Democrat on the House Committee on Oversight and Accountability, wrote an op-ed in The New York Times arguing that the Department of Justice should petition the high court to require the recusal of Alito and a second conservative, Associate Justice Clarence Thomas, whose wife has also made headlines for her apparent support of the effort to overturn the 2020 election.
He cited a federal statute that says, in part, “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Raskin argued that the law clearly applies to members of the Supreme Court because they are the only federal officials with the title “justice.”
Flag controversy
The recusal controversy arose after a New York Times article reported that in the weeks after the storming of the Capitol, a flagpole on the Alito family’s property in Virginia displayed an upside-down American flag.
Long considered a symbol of distress, the reversed flag had been adopted as a symbol by the organization Stop the Steal, which was dedicated to overturning the results of the 2020 election.
Days later, a second report revealed that the Alitos had at one point flown a version of the Pine Tree Flag outside their beach home in New Jersey. The flag features an image of a pine with the motto “An Appeal to Heaven” at the top.
The Pine Tree Flag dates to the American Revolution and has been used in various contexts since then. Most recently, it was carried by the January 6 rioters and had been adopted by elements of the political right who want to see religion play a stronger role in U.S. politics.
Refusal to recuse
On Wednesday, in a letter to Durbin and Senator Sheldon Whitehouse, Alito said that in both cases, his wife had raised the flags without his knowledge.
In the case of the upside-down flag, he said that for several days, she refused his request that she remove it. Likewise, he said his wife had flown the Pine Tree Flag, adding that neither he nor she was aware of its association with the Capitol riot.
Alito cited the Supreme Court code of conduct, under which “a justice is presumed impartial and has an obligation to sit unless disqualified.” In the letter, Alito declined to recuse himself over either of the flag incidents, using similar language in both cases.
“I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal,” he wrote. “I am therefore required to reject your request.”
Justifiable decision
Jonathan H. Adler, a law professor at Case Western Reserve University, told VOA he believes Alito’s decision not to recuse himself is clearly justified by the traditional understanding of when recusal is required.
“As traditionally understood, it requires more than a suspicion or belief about the justice’s ideological orientation or political orientation, but rather a certain sort of bias about the precise issue before the court or the particular parties before the court,” Adler said.
He added, “Assuming the traditional approach to recusal is correct, I don't think there's a basis for recusal. I don't even think it's particularly close.”
Adler said there are potentially strong arguments for revisiting that traditional approach to Supreme Court ethics but argued that any such revision should be the result of careful consideration and should not be driven by “an opportunistic political argument.”
Reform needed
In an email exchange with VOA, Renee Knake Jefferson, a law professor specializing in legal ethics at the University of Houston Law Center, said Alito’s analysis of the recusal requirements is correct, but it points to problems in the Supreme Court’s code of conduct.
Jefferson, citing her own published analysis of the issue, said, “While Alito is correct in the sense that the code does not technically require him to disqualify himself — to be clear, the code contains no requirements — that doesn’t address the larger issue of concerns about impartiality.”
She continued, “There is no perfect solution, but increased transparency and a review mechanism for recusal decisions would be a good start, along with a process for substituting in retired Supreme Court justices and/or federal appellate judges when a justice is disqualified so that deliberations can be made with a full nine on the bench.”
