In a development that will surprise no one, Justice Samuel Alito announced in a brief letter on Wednesday that He will not abandon himself from two lawsuits involving the January 6 uprising and former President Donald Trump’s attempt to steal the 2020 election.
After the New York Times reported, Alito faced widespread calls for his recall, including from many Democratic members of Congress. The flag associated with the movement to overturn President Joe Biden’s 2020 election victory Flew out of his Virginia home and his New Jersey vacation home. His letter announcing he will not resign was addressed to several members of the US House who have called on him to recuse himself from the two cases.
Alito is the court’s most reliable Republican partisan, and he routinely makes statements from the bench and in his published opinions that are far less overtly partisan than the American flag that flies outside his home in Virginia.
Two things about the letter are still noteworthy. One is that Alito blamed both flags on his wife, Martha-Anne, (“My wife is a fan of flying the flag. I’m not,” he wrote) and claimed that he told his wife to take down the upside-down flag, “But for a few days, he refused”
The second is that Alito rests his legal argument almost entirely on unenforceable ethics that the Supreme Court articulated in 2023. Effectively the revocation rules of the unfriendly ethics code are much less stringent than the federal law governing judicial recusal, which applies to the Supreme Court.
Last November, when the court released this ethics code, I described it as “worse than anything.” The code is almost entirely unenforceable, and it codifies weak restrictions on judges accepting gifts.
Yet it turns out I wasn’t cynical enough. I did not anticipate that a trial would cite unenforceable provisions of the Court’s internal ethics code to effectively abrogate a judge’s obligations under more stringent federal law. But Alito did just that.
How Court Recusal Ethics Differs From Federal Recusal Law
The federal statute governing judicial rehabilitation begins with a fairly simple declaratory sentence: “Any trial, judge or magistrate judge of the United States. shall disqualify himself from any proceedings in which his impartiality may reasonably be questioned” Notably, the law applies not only to lower court judges — who are actually bound by a separate code of conduct — but also to “any justice.” Justice Alito is a justice.
In his letter refusing to withdraw, Alito did not even mention this federal law. Instead, he spends almost the entire letter explaining why he doesn’t have to recuse himself under the much weaker standards promulgated in the Court’s own unenforceable ethics code.
That standard begins with a presumption against recusal: “A justice is supposed to be impartial and has an obligation to sit unless disqualified” It uses weaker language to describe when judges should recuse themselves—saying that a justice “should” recuse himself when their impartiality can reasonably be questioned, not that a justice “shall recuse himself”. Qualifies the obligation to do so by stating that the duty to recuse begins when “a reasonable person aware of all the relevant circumstances would doubt that the judge could properly discharge his duty.”
Thus, while the federal statute begins with a declaratory statement that judges are sometimes required to recuse themselves from certain cases, the Court’s own code begins with a statement that judges generally have an “obligation” not to recuse themselves. And the impugned Courts Code also states that a judge may be relieved of his duties if there are “relevant circumstances” of which the public may not be aware.
And so Alito spends much of his letter laying out what he claims are these relevant circumstances. Among other things, he pointed to the fact that he and his wife “jointly own our Virginia home,” giving her “the legal right to use the property as she sees fit.” He also noted that Martha-Ann bought the New Jersey home “with money she inherited from her parents” and that the home was “titled in her name.”
Regardless of whether one might invoke this interpretation, Alito cited these facts only to argue that he was not obligated to recuse himself under the Court’s weak internal ethics code. Because the federal statute is also binding on “any justice,” he also had an obligation, at least, why he was not obligated to recuse himself under this more stringent statute.
Alito’s letter also reveals another weakness in the court’s internal code. Suppose that a news outlet discovers that a lower court judge has flown an inappropriate political flag outside their home, and the judge tries to avoid a motion to recuse by pointing out that the flag was flown by their spouse. A federal trial judge’s decision not to recuse may be appealed to the Federal Circuit Court, and a circuit judge’s decision not to recuse may be appealed to the Supreme Court.
Thus, the rules governing federal judges who do not serve on the Supreme Court ensure that a judge asked to recuse himself from a matter will not have the power to make a final decision in his own case.
An official commentary attached to the Court’s Internal Code, by contrast, states that “Individual judges, rather than courts, decide revocation matters” So Alito has the final say on whether he acted ethically and whether he was relieved of his withdrawal obligation because his wife bought their vacation home with his inheritance.
It was clear the day the Court published its internal code that it would not have much effect on the conduct of judges, in large part because most of the code’s provisions had no enforcement mechanism. But Alito’s letter reveals something even more troubling about the code: It’s apparently something judges will use to justify ignoring their obligations under federal law.
