#unaccountable

Horsey

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Justice Alito’s arrogance threatens the Court

May 30, 2024

ROBERT B. HUBBELL

In an act oozing with contempt for the American people and reckless disregard for the Supreme Court, Justice Alito refused to recuse himself from cases involving Trump's election interference and unlawful retention of national defense documents. Alito sent two letters to members of Congress asserting that “no reasonable person” would conclude that Alito is required to recuse himself. See Letter from Samuel Alito to Senators Dick Durbin and Sheldon Whitehouse.

In his letter to Durbin and Whitehouse, Alito advances factual defenses that were shown to be false or misleading before Alito sent the letter to the Senators. As noted in articles in the NYTimes and Newsweek, Alito’s claim that the Stop the Steal flag was flown in retaliation after a dispute with a neighbor is false. Alito flew the Stop the Steal flag one month prior to the neighborhood dispute. See NYTimes, The Alitos, the Neighborhood Clash and the Upside-Down Flag (accessible to all) and Newsweek, Samuel Alito's Flag Claims Challenged.

Alito also seeks to avoid the controversy by claiming that

His wife is a co-owner of their Virginia home and owner of their beach house, so she “has the right to use the property as she sees fit.”

His “wife is a private citizen, and she possesses the same First Amendment, rights as every other American. She makes her own decisions, and I have always respected her right to do so.”

He “had no involvement in the decision to fly” the Appeal to Heaven flag.

He did not know that the Appeal to Heaven flag supported the “Stop the Steal” message.

His “wife likes flags,” while Alito “does not.”

It is a sad day when a Supreme Court justice lies to US Senators and the American people over a matter of national urgency. But even if we credit Alito’s falsehoods, the question of his recusal is not a close one.

Let’s make this easy. Suppose Alito’s wife flew a Swastika flag over their joint residence for three days. Alito then claims that he asked his wife to remove the flag but she refused. He also claims he did not understand the antisemitic meaning of the Nazi flag. He is then asked to recuse himself from a case before the Court that seeks to prohibit antisemitic speech. Alito could not credibly claim (as he does here) that “no reasonable person” would believe he is required to recuse himself.

The relevant canon of ethics provides:

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.” Canon 3(B)(1)-(2), Code of Conduct for Justices of the Supreme Court.

Tens of millions of Americans reasonably doubt that Alito can fairly discharge his duties. Alito is gaslighting the American people—a technique he learned from Trump. Having been caught in his lie he is doubling down on the lie—while pretending to be aggrieved that Americans doubt his veracity.

This debacle is a stain on the Court and an indictment of Justice Robert’s leadership. His silence is an insult to the American people. He is the Chief Justice of the United States—not merely of the Supreme Court. He holds an office created by and mentioned in the Constitution. He has failed miserably in discharging his duties to oversee the courts of the United States.

What can we do? As always, we can gain control of Congress and the Presidency in order to expand the Court and impose an enforceable code of ethics on the Court.

But is there anything else? Representative Jamie Raskin penned an op-ed in the New York Times arguing that the other justices on the Court can force Alito to recuse himself. See Jamie Raskin: How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases. (Accessible to all.)

Rep. Raskin writes that the DOJ “can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.”

Raskin continues:

The constitutional and statutory standards apply to Supreme Court justices. The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges. This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. When the arguments are properly before the court, Chief Justice John Roberts and Associate Justices Amy Coney Barrett, Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor will have both a constitutional obligation and a statutory obligation to enforce recusal standards.

Of course, Jamie Raskin’s approach calls for the cooperation of Roberts, Kavanaugh, and Barrett, as well as Sotomayor, Kagan, and Jackson. Will that happen? Doubtful, but public pressure may bring about that result.

At a meeting with the newsletter's Founding Members on Wednesday, a reader who is a member of the Supreme Court Bar said that he had just sent a letter to Chief Justice Roberts tendering his resignation. The reader no longer practices before the Supreme Court, so resigning will not interfere with his livelihood.

There are tens of thousands of lawyers in a similar position—they were admitted to the Supreme Court as a ceremonial matter or in connection with briefing on which they appeared. If tens of thousands of lawyers sent similar letters of resignation to Justice Roberts—and published those letters in local newspapers and major media outlets—it would increase pressure on Roberts and focus public attention on the ethics scandal on the Supreme Court.

Sounds like something a lawyer’s group defending American democracy should take on as a project! See also, Slate, (3/13/2020), Judge James Dannenberg writes John Roberts a letter resigning from the Supreme Court Bar.

Sadly, it will likely get worse before it gets better. It will get better, but not before tens of millions of Americans believe they should take to streets in protest. The Supreme Court is systematically stripping Americans of civil liberties and constitutional rights for the first time in the history of our nation. That is worth peaceful protests to protect our rights.

It will take time, but the American people will awaken. Justice Alito is pouring accelerant on the conflagration engulfing the Court. It will take more outrageous decisions and arrogant behavior by Alito, Thomas, and Roberts, but the time will come. Until then, each of us must elevate the crisis on the Supreme Court as an issue that deserves our undivided attention in 2024.

Ambassador David Pressman via Samantha Power at Twitter.