Justice Samuel Alito last week tried to rationalize his failure to recuse from Jan. 6-related cases. Unfortunately, his explanation hasn’t become more persuasive with time, as key rulings are due from the high court on Donald Trump’s criminal immunity and obstruction charges against Jan. 6 defendants more broadly (which could also affect Trump’s case).
In fact, one of his former law clerks took to the op-ed pages of the Philadelphia Inquirer on Sunday to argue for his recusal.
“Flying the flag, upside down, at your home is more than a hint of political impropriety — it irrefutably calls into question impartiality and bias toward the former president,” wrote Susan Sullivan, a professor who clerked for Alito when he was a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals.
Sullivan noted that she’s a progressive liberal who “often admired Alito “as a person for his integrity and honesty.” However well-reasoned her thoughts are, the justice would likely dismiss them due to her politics. He wrote in letters to congressional Democrats last week: “I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal.”
Yet, Alito’s strained logic on this matter demonstrates his own partisanship and motivated reasoning.
To recap the justice’s narrative, he claimed in his letters that he had nothing to do with the inverted flag flying outside his Virginia home in the days following the Jan. 6 attack (or with the “Appeal to Heaven” flag flying outside his New Jersey beach house last summer). He said that his wife did it in response to a neighborhood dispute. He still hasn’t explained what — again, according to him — his wife sought to convey in flying the flag that also was carried by Jan. 6 rioters or what he thought about it — then or now.
Amazingly, he wrote that his wife’s reasons for flying the inverted flag “are not relevant for present purposes” before going on to excuse her behavior by chalking it up to her great distress over a neighborhood dispute.
If that awkward half-justification isn’t bad enough, Alito effectively conceded his knowledge of the inverted flag’s connection to the “Stop the Steal” movement by writing that neither he nor his wife were aware of the movement’s connection to the other flag at issue (Appeal to Heaven). He didn’t write that about the inverted flag. So even accepting Alito’s story on its terms, his dubious explanation bolsters the appearance of impropriety here.
And though he’d likely dismiss his former clerk’s plea because her politics differ from his, one doesn’t have to be a lawyer or have any particular political view to see the problem with him sitting on these cases. The justice has seemingly built a circular logical trap, whereby people calling for his recusal are necessarily unreasonable and reasonable people would necessarily see no need for him to recuse.
With justices judging the validity of their own recusals or nonrecusals, it’s easy to see how Alito sides with himself here. But he can’t ignore that the reasonable people bound by the court’s rulings will see his participation in these cases — and the decisions themselves — as tainted.
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