Supreme Court justices rarely give reasons for their decisions to recuse themselves, and even less often explain why they decide to take on cases where they may have a potential conflict of interest.
Justice Samuel A. Alito Jr. is an exception. He seems positively eager to explain. But it is questionable whether his explanations have helped or harmed his case.
Justice Alito wrote to Democratic lawmakers on Wednesday that he is not only permitted but required to hear two lawsuits arising from the Jan. 6, 2021, attack on the Capitol, despite a controversy over a flag associated with the “Stop the Steal” movement that was flown outside their home.
Legal ethics experts said they welcomed Justice Alito's decision to clarify, but were unconvinced by his statement in the letter that it was his wife who raised the flag and that she should not recuse herself from the pending litigation, whether former President Donald J. Trump is immune from prosecution and whether federal obstruction of justice laws apply to participants in the Jan. 6 attack.
Trump praised Justice Alito in a radio interview on Wednesday: “Justice Alito is a tough guy, strong and very smart, and he made a great statement today,” Trump said.
The controversy over Justice Alito reflects broader questions about the ethics and politics of the Supreme Court, which has seen public confidence in the court slumped in recent years amid a series of ethics scandals, including questions about whether justices should have recused themselves. He will certainly face intense scrutiny as he decides cases involving Trump that could affect the outcome of the next election.
Amanda Frost, a law professor at the University of Virginia, said the quality of Justice Alito's argument in his letter was flawed.
“I agree that Justice Alito's wife has a First Amendment right to express her views,” Frost said, “but if she expresses views on the common property that would call into reasonable people's minds the judge's impartiality, the judge should respond by recusing himself.”
Professor Frost added that the conclusion would not have been different even if the debate had involved a more liberal member of the Supreme Court, such as Justice Ruth Bader Ginsburg, who died in 2020. “I would say the same thing if Justice Ginsburg's husband had put up a 'Gore Wins' sign on their lawn while the Bush v. Gore election was before the court,” she said.
But she added that Justice Alito's decision to explain himself was part of a positive trend and was in line with the Supreme Court's statement of principles last year.
“A clarification can provide the public with relevant facts, forestall unfounded speculation and potentially correct misunderstandings,” she said.
Hofstra University law professor James Sample said he also had mixed feelings.
“The court has never been bothered by excessive transparency,” he said. “Explanations are helpful if they are thorough. They are unwelcome if they are overly selective and disingenuous.”
This is the latest time Justice Alito has explained why he will not recuse himself. In June, he published an opinion in The Wall Street Journal explaining why he should not recuse himself from a case involving a billionaire who offered rides on his private jet. In September, after the Journal interviewed Justice Alito with a lawyer involved in the case, he issued a statement rejecting requests from Democrats to recuse himself from pending litigation.
Justice Alito's refusal to exclude in the Jan. 6 case comes amid growing pressure for the court to address potential conflicts of interest.
Last April, as calls for a binding code of ethics for Supreme Court justices grew, Chief Justice John G. Roberts Jr. declined an invitation to appear before the Senate Judiciary Committee. To reassure Congress and the public that the Court was committed to the issue, he attached the “Statement of Ethical Principles and Practices” that Professor Frost pointed to, which had been signed by all nine justices on the court.
“Questions of recusal are decided by individual judges, not the court,” the statement said, citing principles enshrined in a more formal code of conduct adopted by the court in November that contradict the maxim that no one should be the judge in their own case.
The interim statement also suggests that justices may provide further explanations for their recusal decisions unless “it would be inappropriate to make the grounds for recusal public.” Otherwise, “justices may provide a general explanation for their recusal decision,” it said. It also said “justices may provide a detailed explanation for their decision to recusal or not.”
Since then, several justices have offered brief explanations for their recusals, such as Justice Elena Kagan, who said she recused herself from death penalty cases because of her “former government affiliation,” a reference to her service as U.S. attorney general.
But even such brief explanations are exceptions. In January, Justice Neil M. Gorsuch did not say why he recused himself from another death penalty case, but it appeared to be because he had heard one side of the case as a federal appeals court judge.
Justice Clarence Thomas broke with practice in other cases involving the 2020 election and recused himself in October when the Supreme Court rejected an appeal by his former law clerk and alleged architect of the election interference plot, John Eastman, again without any explanation.
Also on Tuesday, Justice Brett M. Kavanaugh recused himself from the case of Michael Avenatti, the lawyer convicted of trying to extort money from Nike. Avenatti was the defense attorney for Julie Swetnick, who accused Kavanaugh of sexual misconduct in 2018. Kavanaugh, who denies the allegations, gave no explanation this week for his removal.
The first to detail his decision not to resign was likely Justice William H. Rehnquist, who served in the Justice Department before joining the Supreme Court in 1972. In June of that year, Rehnquist joined the majority in Laird v. Tatum, a 5-4 decision that rejected a challenge to the Army's Vietnam War-era surveillance of domestic political groups, though Rehnquist had defended espionage in congressional testimony and criticized the case while a government lawyer.
His participation was heavily criticized: In a statement that fall, he wrote that no rule of judicial ethics prohibited him from staying in the case, and that he did not want the 4-4 stalemate to lead to an automatic upholding.
“The issue, although analyzed, would favor confirmation, I believe is a highly moot issue,” wrote Justice Rehnquist, who became chief justice in 1986. Supreme Court justices, unlike other federal judges, cannot be replaced if they disqualify themselves, he wrote. This creates a presumptive obligation to confirm, he wrote, a point quoted by Justice Alito on Wednesday.
It is unclear whether Justice Alito sought advice from colleagues about his decision not to recuse himself. Letters preserved in Justice Rehnquist's files indicate that he consulted with several justices on the court.
For example, in the summer of 1972, Mr. Rehnquist wrote to Justice Potter Stewart at his New Hampshire farm to tell him he needed help sorting out conflicting advice. Justice Rehnquist wrote that some of the criticism of his actions was “insidious” and that “The New York Times and the Washington Post have taken up this issue at every opportunity.”
Six days later, in a handwritten memo, Judge Stewart expressed ambivalence about the wisdom of issuing a statement explaining his recusal decision, but said the idea was “fundamentally sound.”
“On the other hand,” Judge Stewart said, “you should not be so optimistic as to think that this memo will satisfy The New York Times or The Washington Post or other critics. It will probably only frustrate them further. And they have the final say.”
More than three decades passed before a justice next made a significant statement about his decision not to resign. In 2004, Justice Antonin Scalia explained that he could vote in a case about Vice President Dick Cheney's official conduct, even though he had gone duck hunting with Cheney in Louisiana and flown on Cheney's government plane.
“Our airfare was at no cost to the Government,” Justice Scalia wrote, who died in 2016. “The invitation was subject to availability.”
Justice Alito used the same method in an opinion he wrote in The Wall Street Journal last year, saying he didn't have to disclose the private jet travel of a billionaire litigator who frequently sits before the Supreme Court because the passenger was flying in a seat “that, to my knowledge, would have been vacant.”
Justice Rehnquist, in his 1972 statement, said that a judge's departure involves a delicate balance.
“Evidence that a justice was completely ignorant in the field of constitutional adjudication when he or she joined the Supreme Court would be evidence of lack of qualifications, not lack of bias,” he said.