To recuse or refuse? A look at Supreme Court justices’ decisions on whether to step aside in cases
WASHINGTON — By refusing to waive two high-profile Supreme Court cases, Justice Samuel Alito on Wednesday provided a rare insight into the opaque process by which justices decide to waive cases.
Alito has faced calls from Democrats to withdraw from two cases involving former President Donald Trump and Jan. 6 defendants over the controversy over flags flying over his homes.
Both flags resembled those carried by rioters who violently stormed the Capitol in January 2021, while echoing Trump’s false claims of election fraud.
Revelations about the flags came as the court examined matters related to the Jan. 6 riot, including the charges the rioters faced and whether Trump has immunity from prosecution on election interference charges.
In letters to members of Congress, Alito said he was not involved in flying an upside-down flag over his home in 2021 and an “Appeal to Heaven” flag at his New Jersey beach house last year. He said his wife, Martha-Ann, was responsible for both flags. According to him, his impartiality could not reasonably be questioned.
The statement is unlikely to satisfy Democratic critics, but they have little recourse.
A look at the Supreme Court recusal process:
THERE SHOULD BE A LAW
There is a Supreme Court Code of Ethics that was recently adopted to guide the judges, but there are also no means to enforce it.
A law that applies to Supreme Court justices and all other federal judges contains several criteria requiring a denial.
The language most relevant in Alito’s case reads: “Every judge, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality may reasonably be questioned.”
The court’s code of conduct says that judges generally have a duty to participate in cases because, unlike judges of lower courts, judges cannot be replaced if there is a conflict. The code differs from federal law by stating that a judge “shall” himself, rather than “shall.” It also states that only an impartial and reasonable person who is “aware of all relevant circumstances” can validly request a recusal.
WHO DECIDES?
The Supreme Court judges decide for themselves whether and when to withdraw a case. In rare cases, a party to a case will ask the judge for a recusal.
In one notable example, the Sierra Club asked Justice Antonin Scalia to recuse himself from a 2004 case involving an energy task force convened by then-Vice President Dick Cheney after reports that Scalia and Cheney, longtime friends, went duck hunting together.
Scalia spent 21 pages explaining his decision not to recant, acknowledging that he had accepted an invitation to fly on Cheney’s government plane to a hunting camp in Louisiana but denying that they had actually hunted or spent much time together spent.
“If it is reasonable to think that a Supreme Court justice can be bought so cheaply, the nation is in deeper trouble than I imagined,” Scalia wrote.
“Since I do not believe that my impartiality can reasonably be questioned, I do not think it would be appropriate for me to deny this,” he wrote.
Ultimately, the only consequence for a judge’s refusal to recuse is also highly unlikely: impeachment by the House of Representatives and removal from office by the Senate. That never happened.
ALITO’S EXPLANATION
Alito pointed to the Supreme Court’s code of ethics to explain that judges have a duty to participate in a case unless their impartiality could reasonably be questioned. In this case, he said, anyone “not motivated by political or ideological considerations or a desire to influence the outcome of Supreme Court cases” would see that recusal is not required.
The judge wrote that in both cases the flags were flown by his wife and were not flown to identify with the Capitol rioters or the Stop the Steal Movement. Alito said he was not aware of the connection between the “Appeal to Heaven” flag and the effort to overturn the 2020 election results. In 2021, he said he urged his wife to take down the inverted American flag, but she refused for several days.
Alito defended his wife’s right to express herself and also described some of the sacrifices she has made because of his service on the Supreme Court, “including the insult of having to endure numerous, loud, obscene and personally offensive protests in front of our home these continue to this day and are now in danger of escalating.”
DO JUDGES EVER GET JUSTICE?
Yes, it happens all the time. Most recently, Judge Brett Kavanaugh noted his denial following the court’s rejection Tuesday of attorney Michael Avenatti’s appeal of his criminal conviction for attempting to extort Nike out of $25 million. Although Kavanaugh did not say why, it seems likely that he delayed the case because Avenatti represented one of the women who accused Kavanaugh of sexual misconduct during his Supreme Court hearings. Kavanaugh has denied any impropriety.
Other examples are when judges, including Alito, have even a small investment in a company that has a case pending in court. Last year, Alito did not participate in an appeal involving Phillips 66. He did not explain his decision, but his financial disclosures showed he owns between $15,000 and $50,000 worth of company stock.
Another common reason for refusal is when judges have heard cases in previous positions, either in the executive branch or as judges of lower courts. Last week, Judge Ketanji Brown Jackson and Kavanaugh recused themselves from a case involving former Guantanamo detainee Omar Khadr, whose case had previously been before the federal appeals court in Washington, where Jackson and Kavanaugh both sat. Jackson noted the reason for her refusal, but Kavanaugh did not.