The Roberts Rules of Recusal

When it comes to recusal, Senators Whitehouse and Durbin have the ethics of the Supreme Court completely backwards.

AP/J. Scott Applewhite
Chief Justice Roberts at the Supreme Court building, October 7, 2022. AP/J. Scott Applewhite

Chief Justice Roberts didn’t just fall off the turnip truck. That’s what we take from his rebuff of the demand from Senators Durbin and Whitehouse for a meeting about Justice Samuel Alito’s flagpole. It was necessary because of the unceasing efforts of Democratic lawmakers to harry a court that has swung conservative. What they cannot gain via litigation they seek to accomplish with intimidation and grandstanding from without.

The key point to mark is that for Justice Alito to recuse himself would not only be ill advised — it would itself be unethical. The Chief marks this point by reminding the lawmakers of the practice the court has “followed for 235 years pursuant to which individual justices decide recusal issues.” Were that not the case, others seeking to interfere with the court’s decision making would be calling for one recusal after another in an effort to tilt the table.

Democrats want Justice Alito to step aside from two January 6 cases — one concerning presidential immunity and another that could determine whether some obstruction charges can be used against hundreds of defendants, including President Trump. Justice Alito is refusing to contemplate recusal. This is owing to his rectitude and his obligation not to be buffaloed by controversy or pressure.

In his own note to the lawmakers, Justice Alito maintains that he is “duty-bound” to reject their refusal requests. He also contends that he is “required” to do so, though he allows that partisans motivated by “political or ideological considerations or a desire to affect the outcome of Supreme Court cases” could disagree. The language of obligation is apt, because the requirement to hear a case amounts to what Chief Justice Rehnquist called the “duty to sit.” 

We recalled this duty when the furor over the flags first unfurled. There are no pinch hitters on the Supreme Court bench, and no higher authority to adjudicate a tie. Recusal is required in cases where a jurist’s “impartiality might reasonably be questioned.” Justice Alito maintains that the two flags — an upside down Stars and Stripes, and an “Appeal to Heaven”  — were his wife’s brainstorms. She is, he notes, a “private citizen.”

Those who belittle this explanation are unlikely to be married. The case for recusal, in any event, appears woven from innuendo and speculation. The “Appeal to Heaven” flag dates back to George Washington, and was until recently flown in front of San Francisco’s city hall, hardly a revanchist redoubt. The upside down one is more ambiguous, and appears related to neighborhood strife and vitriol directed at the Alitos.

Whatever the precise nature of the symbol, it appears to fall short of the high bar required for recusal — though only Justice Alito gets to decide. Messrs. Durbin and Whitehouse are right to reference ethics, only they are mistaken as to which way the imperative cuts. In the absence of the kind of conflict requiring recusal, it would be unethical for Justice Alito not to hear these cases, and any others that should arise.

Chief Justice Roberts himself notes that decision is Justice Alito’s  alone to make. The court’s Code of Conduct mandates that  “Individual Justices, rather than the Court, decide recusal issues.” The senators want the Chief Justice to take “appropriate steps to ensure that Justice Alito will recuse himself.” It would be no more lawful for the chief justice to compel recusal than it would be for Messrs. Durbin and Whitehouse to do so — meaning not at all.   

The New York Sun

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