High Court Showdown: ‘Go Ahead, Make Our Day.’

Congressman Jamie Raskin wants President Biden to breach the separated powers by forcing the recusal of Justices Alito and Thomas in cases involving President Trump.

AP/J. Scott Applewhite
Representative Jamie Raskin at the Capitol in 2022. AP/J. Scott Applewhite

Ahead of the Supreme Court’s decisions on President Trump’s legal immunity and January 6, liberal Democrats have a new scheme to tilt the bench. The idea, put forward by Congressman Jamie Raskin, is to force the recusal of Justices Samuel Alito and Clarence Thomas. The means of sidelining the justices would be a demand to the full court by President Biden’s Department of Justice. It’s as startling a breach of the separated powers as has ever been tried.

Too many, Mr. Raskin writes in an op-ed for the Times, “have gloomily accepted the conventional wisdom” that “there is no way to force” Justices Alito and Thomas to recuse themselves in the upcoming cases. The justices, he adds, “are probably making the same assumption.” Lo, Mr. Raskin contends, “all of them are wrong.” The Old Line State congressman finds it “unfathomable” that there’s no way to oust the two justices.

Mr. Raskin eyes a “groundswell of appeals beseeching” the two justices “not to participate” in the two Trump-related cases. He points to the activism of Justice Thomas’s wife and the flags flown outside Justice Alito’s houses. Yet “everyone assumes that nothing can be done,” Mr. Raskin avers, because “the highest court in the land has the lowest ethical standards.” He laments that “each justice decides for him- or herself whether he or she can be impartial.”

Yet that standard suits life tenure, which puts the justices above the political fray. The Framers, Hamilton said, meant “the powers of judging” to be “separated from the legislative and executive power.” Hamilton echoed Massachusetts’s Constitution. It ordains that “to the end it may be a government of laws, and not of men,” the “legislative department shall never exercise the executive and judicial powers, or either of them” — and so on, for each branch.

Mr. Raskin is attempting a kind of trifecta of unconstitutionality: a member of the legislative branch urging the head of the executive branch to interfere in the operations of the judiciary. He concedes that Justices Alito and Thomas might “choose to recuse themselves — wouldn’t that be nice?” He prefers that President Biden, acting through his justice department, “petition the other seven justices to require Justices Alito and Thomas to recuse themselves.” 

The demand would be expounded, as Mr. Raskin puts it, “not as a matter of grace but as a matter of law.” He points to the United States Code on disqualification. Mr. Raskin calls it “not a friendly suggestion,” but “Congress’s command.” Yet Chief Justice Roberts has cautioned that “the individual Justices decide for themselves whether recusal is warranted under” that law, and “the limits of Congress’s power to require recusal have never been tested.” 

This is partly “a consequence of the Constitution’s command,” the Chief Justice explained, to create only “one supreme Court.” As a “court of last resort,” there “is no higher court to review a Justice’s decision not to recuse.” So justices, when no conflict exists, are obligated to hear cases, Chief Justice Rehnquist has said, in part because the lack of a higher tribunal means an evenly split court could distort American jurisprudence. He marked the “duty to sit.” 

Even more to the point of Mr. Raskin’s proposal, Chief Justice Roberts explained, “the Supreme Court does not sit in judgment of one of its own Members’ decision whether to recuse.” The potential for mischief is too great. “It would create an undesirable situation,” he wrote, “in which the Court could affect the outcome of a case by selecting who among its Members may participate.” Just, apparently, what Mr. Raskin has in mind.

Beyond law, Mr. Raskin reckons that “the Constitution has come into play” in recent cases where “stubborn judges in lower courts” had their impartiality doubted but “threw caution to the wind to hear a case anyway.” Yet how is the executive branch meddling with the judiciary constitutional? It’s hard to imagine that the justices would allow a court majority to decide recusal for any justice, no matter what Mr. Biden says. So “go ahead,” we say, “make our day.”

The New York Sun

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