The Case for Alito’s Recusal
An open letter to the justice.
Dear Justice Alito,
The drip-drip-drip of reports about the roles that you and your wife are playing in partisan controversies has risen to a torrent. You must reconsider your decision not to recuse yourself from pending and future cases that come before the Supreme Court involving former President Donald Trump or participants in the events at the Capitol on January 6, 2021. Compliance with governing law and public respect for the integrity of the Court’s process require this result.
For more than half a century, I have been a member of the bar of the Court, and I have had the privilege of appearing regularly before the Court over that period. Nothing is more important to the rule of law than assuring the people of our country that each justice is adhering to the judicial oath that you and your colleagues have taken to “administer justice without respect to persons, and do equal right to the poor and to the rich,” and “impartially discharge and perform all the duties incumbent upon me.”
As you know, there has been great public concern about your impartiality in light of the display of two flags at your properties that appear to signal support for former President Trump’s claim that he won the 2020 election and for those who were inspired by Trump’s claim to act out violently during the events of January 6th.
Your May 29 letter to Senators Durbin and Whitehouse explaining your reasons for refusing to recuse yourself from cases involving former President Trump’s interests before the Court or related cases acknowledges the salient facts that have led to calls for you to do so. In the letter, you assigned responsibility for the events to your wife. While recent reports in the Washington Post and elsewhere have cast doubt on the accuracy of your explanation, even your own narrative demonstrates why recusal is necessary. Additionally, Rolling Stone this week has disclosed surreptitious recordings of you and your wife indicating that both of you have chosen political sides.
The only reasons you have offered for refusing to step aside misperceive both the governing legal standards for recusal, on one hand, and the reasonability of concerns about your impartiality, on the other. As a consequence, your decision against recusal in any January 6th–related cases has already begun undermining the legitimacy and integrity of any decision in which you participate on these important issues.
In your letter, you refer to the Court’s code of conduct, adopted last November, which states that a justice “should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” (Emphases added.)
After summarizing your explanation of the background circumstances that have generated so much public concern, you assert:
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 this event does not meet the applicable standard for recusal.
There are several serious problems with this conclusion.
First, your letter refers only to the Court’s precatory code of conduct, which merely notes the general circumstances in which a justice “should” recuse himself.
But you overlook the mandatory directive of a federal statute that prescribes requirements for judicial disqualification. The statute, 28 U.S.C. § 455, which explicitly applies to justices of the Supreme Court, requires that any “justice . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” and also holds that he “shall also disqualify himself” if “his spouse” is “known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” (Emphases added.)
By its terms, Congress has made these requirements apply to all members of the federal judiciary, including “any justice,” thus establishing the important principal that protection of the integrity of the Supreme Court’s decision-making process is at least as important as the handling of federal cases by lower court judges.
Thus, federal law makes recusal mandatory in at least two of the circumstances present here. One is when a justice’s impartiality might reasonably be questioned. Your letter addressed only an optional alternative to that mandatory ground for recusal.
But the statute separately (“also”) establishes a requirement for recusal when a spouse of the justice has an “interest” that could be “substantially affected” by the outcome of the proceeding. The “interest” need not be financial. As the statute recognizes, judicial integrity is so important that safeguarding it requires that some interests and activities of the spouse of a justice be attributed to the justice himself, creating new conditions for recusal.
Although you originally suggested that your wife’s display of the upside-down American flag was merely part of a local spat with a neighbor, her recently recorded words make clear that she uses these displays to communicate her point of view supporting conservative causes, particularly that of the Christian right. “You know what I want? I want a Sacred Heart of Jesus flag because I have to look across the lagoon at the Pride flag for the next month,” she said, adding that she told her husband that once he is “free of this nonsense,” she will continue to fly her banners: “I’m putting it up and I’m gonna send them a message every day, maybe every week, I’ll be changing the flags.”
Do any of these things—Mrs. Alito’s choices of flag, or the kind of political-communication-via-vexillology that she describes, or the admission of political frustration that she made to her surreptitious interlocutor—rise to the level of having an “interest” in the proceeding and the outcome of the cases directly affecting former President Trump and his supporters? Opinion here might differ, and might hinge in part on the plausibility of your letter’s claim that you and your wife were unaware that the “Appeal to Heaven” flag flown by your wife had been adopted by the pro-Trump “Stop the Steal” movement.
In your letter, you defended the “Appeal to Heaven” flag on the ground that it dates back to the American Revolution, and “the use of an old historic flag by a new group does not necessarily drain the flag of all other meanings.” In fact, there is persuasive evidence that, in the decades after the Revolution, there was “no systematic or popular use of this flag until 2013,” at which time it “began to assume its contemporary connotations” as the “rallying standard” for those who desire to reconstitute American government on a Christian right basis—and since the 2020 election, it has further evolved to become the symbol of a “mass spiritual warfare campaign for Trump’s fallacious reinstatement.” Whether you or your wife understood the symbol in this way is immaterial; it is grounds for reasonable people to doubt your impartiality.
Your letter does not address whether you and your wife were aware that the upside-down American flag had likewise been adopted as a symbol of the pro-Trump Stop-the-Steal movement.
This degree of personal advocacy by your spouse, which plausibly touches on matters that are or will be before the Court, arguably constitutes the kind of interest that the statute makes grounds for mandatory recusal.
Second, you assert that a “reasonable person” aware of all the circumstances would not see grounds for recusal. Yet reasonable people with knowledge of the circumstances as you yourself describe them have, unfortunately, questioned your impartiality.
Third, you have superimposed another limitation on the controlling standards for recusal under either the applicable statute or the Court’s code of conduct. You assert that you are concerned about a “reasonable person” who is “not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases.” This explanation conflates two distinct issues.
The motives of the observers who raise an objection are distinct from the salient issue, which is whether the ordinary “reasonable person” would view the circumstances as a basis to “question” the “impartiality” of a justice. Nothing in the statute or in the code of conduct authorizes this kind of speculation about motives as an excuse for refusing to step aside, if a controlling standard (“reasonable person” or “potentially affected interest”) is otherwise established.
In any event, my concern about maintaining (or restoring) the all-important respect for the integrity of the Court’s judicial decision-making process is not motivated either by political or ideological bias or by a desire to “affect” the outcome of these cases. Instead, I seek to enhance the possibility that the outcome—whatever it turns out to be—may be seen as nonpolitical and unbiased. Your refusal to recuse yourself taints the process and inevitably will undermine confidence in the Court’s decision on the merits.
Accordingly, I respectfully invite you to reconsider your decision and to take the proper course: recuse.
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