On Thursday, May 30, 2024, The New York Times reported that experts were questioning Supreme Court Justice Samuel Alito’s decision not to recuse himself from upcoming cases related to the January 6th attack on the Capitol.

Justice Alito had sent letters to Democratic lawmakers earlier in the week to defend his choice to participate, citing that flags displayed outside his home that were linked to attempts to overturn the 2020 election results were placed there by his wife, not himself. However, legal scholars interviewed by the Times were skeptical of this argument.

One expert, Professor Amanda Frost from the University of Virginia, agreed that Justice Alito’s wife had a constitutional right to freely express her political views. However, Professor Frost said that if those views were expressed on shared property in a way that could undermine perceptions of his impartiality, then recusal would have been prudent. She noted she would say the same if the situation involved a liberal justice like the late Ruth Bader Ginsburg.

Another law professor, James Sample from Hofstra University, said he had mixed feelings about Alito’s decision to clarify his reasons for not recusing. While more transparency was broadly positive, Sample warned an explanation could also be misleading or selective about facts.

The Times report provided further context about the court’s inconsistent approach to recusals and lack of a formal code of ethics until recently. Individual justices traditionally make their own recusal calls, though last year Chief Justice John Roberts acknowledged more transparency could be helpful following several controversies. Some justices like Elena Kagan or Neil Gorsuch had briefly explained recusals before, but others like Clarence Thomas or Brett Kavanaugh did not when sitting out related cases this year.

The article also detailed some of the earliest instances of justices publicly defending non-recusal decisions, such as when Justice William H. Rehnquist participated in a 1972 case involving policies he had previously advocated for as a Nixon administration official. While controversial at the time, Rehnquist argued there were valid reasons not to recuse and risked ties if he did.

The report concluded by noting the intrinsic difficulty in balancing impartiality with not wanting to undermine the Supreme Court’s important functions.

 

 

Source: The New York Times