Experts Question Alito’s Failure to Recuse Himself in Flag Controversy

Chief Justice John Roberts leaves the Capitol after a session of the Senate impeachment trial of President Donald Trump on Capitol Hill in Washington, Jan. 29, 2020. (Erin Schaff/The New York Times)
Chief Justice John Roberts leaves the Capitol after a session of the Senate impeachment trial of President Donald Trump on Capitol Hill in Washington, Jan. 29, 2020. (Erin Schaff/The New York Times)

WASHINGTON — Supreme Court justices seldom give reasons for their decisions to recuse themselves. Even rarer are explanations for deciding to participate in a case when they have been accused of conflicts of interest.

Justice Samuel Alito is an exception. He seems positively eager to explain himself. But whether his explanation has helped or hurt his cause is open to question.

On Wednesday, Alito wrote letters to Democratic lawmakers saying he was not only permitted but also obligated to sit on two cases arising from the Jan. 6, 2021, attack on the Capitol despite controversies over flags displayed outside his houses associated with the “Stop the Steal” movement.

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Experts in legal ethics said they welcomed Alito’s decision to explain himself. But they were not persuaded by the reasoning in his letters, which said the flags had been flown by his wife and so did not require him to step aside in the pending cases, on whether former President Donald Trump is immune from prosecution and on whether a federal obstruction law covers participants in the Jan. 6 assault.

Trump praised the justice in a radio interview Wednesday. “Alito is a tough guy, and he’s strong and very, very smart, and he put out a great statement today,” Trump said.

The controversy surrounding Alito reflects wider questions about ethics and politics at the court. Public trust in the court has fallen amid a swirl of ethics scandals in recent years, many involving whether justices should have recused themselves, and scrutiny is certain to be intense as they decide cases concerning Trump that could influence the outcome of the next election.

Amanda Frost, a law professor at the University of Virginia, said the quality of the reasoning in Alito’s letters had shortcomings.

“I agree that Justice Alito’s wife has a First Amendment right to express her views,” Frost said. “But if she does so on their shared property, in a way that would lead a reasonable person to question his impartiality, then he should respond by recusing himself.”

Frost added that her conclusion would be no different had the controversy involved a liberal member of the court such as Justice Ruth Bader Ginsburg, who died in 2020. “I would say the same,” she said, “if Justice Ginsburg’s husband had placed a ‘Gore won’ sign on the lawn of their shared home while the Bush-Gore election was being contested in the courts.”

But she added that Alito’s decision to explain himself was part of a positive trend, saying that it was in keeping with a statement of principles from the court last year.

“Explanation can provide the public with relevant facts, which may forestall baseless speculation or correct misunderstandings,” she said.

James Sample, a law professor at Hofstra University, also said he had mixed feelings.

“The court has never suffered from an excess of transparency,” he said, “and an explanation is helpful if it’s thorough. Explanation is unwelcome if it’s hyper-selective and borderline dishonest.”

Alito’s explanation of why he would not recuse himself was only his most recent. In June, he published an opinion essay in The Wall Street Journal explaining why he was not required to disqualify himself from cases involving a billionaire who had provided him with travel on a private jet. In September, he issued a statement rejecting demands from Democratic lawmakers that he recuse himself from a pending case after a lawyer involved in the matter interviewed him for the Journal.

Alito’s refusal to recuse in the Jan. 6 cases comes as the court has been under growing pressure to address potential conflicts of interest.

In April 2023, as calls for a binding code of ethics for Supreme Court justices mounted, Chief Justice John Roberts turned down a request to appear before the Senate Judiciary Committee. In an apparent effort to reassure Congress and the public that the court was on the case, the chief justice attached the “statement on ethics principles and practices” that Frost noted. It was signed by all nine members of the court.

“Individual justices, rather than the court, decide recusal issues,” the statement said, reciting a principle that would appear in the more formal code of conduct adopted by the court in November and at odds with the adage that no one should be a judge in his or her own case.

The interim statement also suggested that the justices might do more to explain their recusal decisions unless “public disclosure of the basis for recusal would be ill-advised.” Otherwise, it said, “a justice may provide a summary explanation of a recusal decision.” In addition, “a justice also may provide an extended explanation for any decision to recuse or not recuse.”

Since then, some justices have issued brief explanations for their recusals. Justice Elena Kagan, for instance, noted her recusal from a death penalty case on account of “prior government employment,” a reference to her service as U.S. solicitor general.

But even such terse explanations have been the exception. In January, Justice Neil Gorsuch did not say why he had recused himself from a different death penalty case, though it seemed to be because he had heard an aspect of it as a federal appeals court judge.

Justice Clarence Thomas, in a break from his practices in other cases involving the 2020 election, recused himself in October when the Supreme Court turned down an appeal from John Eastman, his former law clerk and an architect of a plan to subvert the election. There was, again, no explanation.

And on Tuesday, Judge Brett Kavanaugh recused himself from a case involving Michael Avenatti, a lawyer convicted in a plot to extort money from Nike. Avenatti had represented Julie Swetnick, who in 2018 accused Kavanaugh of sexual misconduct. Kavanaugh, who denied the accusations, offered no explanation for his recusal this week.

The first extended explanation of a decision not to recuse appears to have come from Justice William Rehnquist, who joined the court in 1972 following service in the Justice Department. That June, he voted with the majority in Laird v. Tatum, a 5-4 decision that dismissed a challenge to Army surveillance of domestic political groups in the Vietnam War era though he had defended the spying program in congressional testimony and criticized the suit while a government lawyer.

His participation was heavily criticized. In a statement that fall, he wrote that no rule of judicial ethics prohibited staying on the case and that a 4-4 deadlock resulting in an automatic affirmance was undesirable.

“I do regard the question as a fairly debatable one, even though upon analysis I would resolve it in favor of sitting,” wrote Rehnquist, who would be elevated to chief justice in 1986. Supreme Court justices are unlike other federal judges, he wrote, as they cannot be replaced if they disqualify themselves. That gives rise, he wrote, to a presumptive duty to sit, one also cited by Alito on Wednesday.

It is unknown if Alito sought advice from his colleagues on his decision not to recuse himself. Correspondence in Rehnquist’s papers showed that he consulted with several members of the court.

In the summer of 1972, for instance, he wrote to Justice Potter Stewart at his farm in New Hampshire, saying he needed help sorting out the conflicting advice. Some of the criticism of his actions had been “snide,” Rehnquist wrote, and “The New York Times and Washington Post tend to feature the matter at every opportunity.”

In a handwritten note six days later, Stewart was ambivalent about the wisdom of issuing a statement explaining the decision on recusal, though he called the idea “basically healthy.”

“On the other hand,” Stewart said, “I am sure you are not so sanguine as to think that the memo will satisfy the NY Times, Washington Post or other critics. It will probably just further irritate them, and they do have the last word.”

More than three decades passed until the next major statement from a justice on a decision not to recuse. In 2004, Justice Antonin Scalia explained that he could vote on a case involving the official conduct of Vice President Dick Cheney despite the fact that the two had gone duck hunting together, flying to Louisiana on Cheney’s government plane.

“Our flight down cost the government nothing,” wrote Scalia, who died in 2016, “since space-available was the condition of our invitation.”

Alito adopted the same accounting methodology last year in his opinion essay in The Wall Street Journal, saying he was not required to disclose a trip on the private jet of a billionaire who frequently had cases before the Supreme Court because he had flown in “a seat that, as far as I am aware, would have otherwise been vacant.”

In his 1972 statement, Rehnquist said recusal involved a delicate balance.

“Proof that a justice’s mind at the time he joined the court was a complete tabula rasa in the area of constitutional adjudication,” he said, “would be evidence of lack of qualification, not lack of bias.”

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