WASHINGTON – By refusing to recuse himself from two high-profile Supreme Court cases, Justice Samuel Alito on Wednesday provided a rare window into the opaque process by which justices decide to recuse themselves from cases.
Alito faced calls from Democrats to recuse himself from two cases involving former President Donald Trump and the Jan. 6 defendants because of the controversy over flags flying over their homes.
Both flags were similar to those carried by protesters who violently stormed the Capitol in January 2021, while echoing Trump’s false claims of election fraud.
The revelations about the flags come as the court is considering cases related to the Jan. 6 riot, including the charges protesters face and whether Trump has immunity from prosecution on election interference charges.
In letters to members of Congress, Alito said he had no involvement in flying an inverted flag over his home in 2021 and an “Appeal to Heaven” flag over his New Jersey beach house last year. He said his wife, Martha-Ann, was responsible for both flags. His impartiality, he said, could not reasonably be questioned.
The explanation is unlikely to satisfy Democratic critics, but they have few resources.
A look at the Supreme Court’s recusal process:
THERE SHOULD BE A LAW
There is, as well as a code of ethics recently adopted by the Supreme Court to guide judges, although there is no way to enforce it either.
A law that applies to Supreme Court justices and all other federal judges establishes several criteria that require impeachment.
The most relevant language in Alito’s case reads: “Any judge, judge, or magistrate of the United States shall disqualify himself from any proceeding in which his impartiality may reasonably be questioned.”
The court’s code of conduct says that a judge normally has a duty to participate in cases, since judges, unlike trial judges, cannot be replaced when there is a conflict. The code differs from federal law in saying that a judge “should,” rather than “must,” disqualify himself. It also says that only an impartial and reasonable person who is “aware of all relevant circumstances” can validly request a refusal.
WHO DECIDES?
Supreme Court justices decide for themselves if and when to recuse themselves from a case. On rare occasions, one party to a case will request the judge’s recuse.
In one notable example, the Sierra Club asked Justice Antonin Scalia to recuse himself from a 2004 case about an energy working group convened by then-Vice President Dick Cheney after reports that Scalia and Cheney, old friends, went duck hunting together.
Scalia spent 21 pages explaining his decision not to refuse, acknowledging that he accepted an invitation to fly to a hunting camp in Louisiana on Cheney’s government plane but denying that they actually hunted or spent any significant time together.
“If it is reasonable to think that a Supreme Court justice can be bought so cheaply, the nation is in deeper trouble than I imagined,” Scalia wrote.
“As I do not believe my impartiality can reasonably be questioned, I do not think it would be appropriate to recuse myself,” he wrote.
Ultimately, the only consequence of a judge’s refusal to recuse is also highly unlikely: impeachment by the House of Representatives and removal from office by the Senate. This never happened.
ALITO’S EXPLANATION
Alito referred to the Supreme Court’s code of ethics to explain that judges have an obligation to participate in a case unless their impartiality can reasonably be questioned. In this case, he said, anyone “not motivated by political or ideological considerations or the desire to affect the outcome of Supreme Court cases” would see that the recusal is not necessary.
The judge wrote that in both cases, the flags were flown by his wife and were not flown to identify the Capitol rioters or the “Stop the Steal Movement.” Alito said he was unaware of the association of the “Appeal to Heaven” flag with the effort to undo the 2020 election results. In 2021, he said he asked his wife to remove the inverted U.S. flag, but she refused for several days.
Alito defended his wife’s right to express herself and also detailed some of the sacrifices she made because of her service on the Supreme Court, “including the insult of having to endure numerous loud, obscene and personally insulting protests in front of our home which continue to this day and now threaten to increase.”
HAVE JUSTICES ALREADY REFUSED?
Yes, this happens all the time. Most recently, Justice Brett Kavanaugh noted his refusal in the court’s rejection Tuesday of attorney Michael Avenatti’s appeal of his criminal conviction for attempting to extort up to $25 million from Nike. Although Kavanaugh did not say why, it seems likely that he was left out of the case because Avenatti represented one of the women who accused Kavanaugh, during his Supreme Court confirmation hearings, of sexual misconduct. Kavanaugh has denied any impropriety.
Other examples are when judges, including Alito, hold even a small investment in a company with a case in court. Last year, Alito did not participate in an appeal involving Phillips 66. He did not explain his decision, but his financial disclosure showed that he owns between $15,000 and $50,000 worth of company stock.
Another common reason for refusal is when judges have handled cases in previous positions, either in the executive branch or as trial judges. Last week, judges Ketanji Brown Jackson and Kavanaugh recused themselves from a case involving former Guantánamo detainee Omar Khadr, whose case had already been brought to the federal appeals court in Washington, on which Jackson and Kavanaugh served. Jackson noted the reason for his refusal, but Kavanaugh did not.
