Alito says he won’t recuse himself from election and Jan. 6 cases after flag controversies

Geoff Bennett:

U.S. Supreme Court Justice Samuel Alito told lawmakers today he won't recuse himself from cases involving the 2020 presidential election or the January 6 Capitol riot. That's despite concerns about two flags associated with far right causes that have flown over his properties.

Responding to demands from Democrats that he disqualify himself, Alito said in two letters that his wife, Martha-Ann Alito, was responsible for flying the flags.

"My wife is an independently-minded private citizen," the justice wrote. "She makes her own decisions and I honor her right to do so."

Kathleen Clark is with us. She's a law professor at Washington University in St. Louis, and she specializes in government ethics.

Thanks for being with us, especially as you're traveling.

Kathleen Clark, Washington University of Saint Louis: Thank you.

Geoff Bennett:

So, The New York Times reported that there was this upside-down American flag displayed at Alito's Virginia home in the days before President Biden's inauguration.

And in the letter that he issued today, the justice said he had nothing whatsoever to do with the flag. He was not aware of it. When he became aware of it, he asked his wife to take it down, but she refused for several days. And he says: "My wife and I own our Virginia home jointly. She therefore has the legal right to use the property as she sees fit."

Is that an adequate explanation from an ethics perspective?

Kathleen Clark:

No, it is not.

Justice Alito is accurate in saying that his wife has a legal right to display a flag in front of a house that she co-owns with him. No one's questioning her legal rights. The issue is whether he needs to recuse once it has become clear that his — this flag associated with the January 6 insurrection was displayed in front of a house he co-owns.

So this isn't about his wife's First Amendment rights. This is about recusal obligations that Congress has imposed on justices and judges.

Geoff Bennett:

Well, in his letter, he also addressed the more recent reporting by The Times that there was this Appeal to Heaven flag that flew at his beach home in New Jersey. This is a flag that was also carried by January 6 rioters.

And, in his letter, he says: "I was not familiar with the Appeal to Heaven flag when my wife flew it. She may have mentioned that it dates back to the American Revolution, and I assumed she was flying it to express a religious and patriotic message. I was not aware of any connection between this historic flag and the Stop the Steal movement, and neither was my wife. She did not fly it to associate herself with that or any other group.

"As I said in reference to the other flag event, my wife is an independently minded private citizen. She makes her own decisions and I honor her right to do so. Our vacation home was purchased with money she inherited from her parents and is titled in her name. It is a place away from Washington where she should be able to relax."

Again, your assessment of this explanation.

Kathleen Clark:

This is a closer call if indeed this is a home that Justice Alito doesn't have any legal right to, if that is the case.

But, again, the issue isn't just subjectively what was in Justice Alito's mind. Congress mandates that justices recuse, disqualify themselves if their impartiality might reasonably be questioned. It's not enough to say that as Justice Alito was ignorant.

The question is whether it's reasonable for people to question his impartiality in these cases related to the January 6 insurrection.

Geoff Bennett:

What about Justice Clarence Thomas? Because he has also faced calls to recuse himself, given the fact that his wife, Ginni Thomas, was involved in efforts to reverse President Biden's election win.

She also attended the rally that Donald Trump held the day of the January 6 insurrection. Justice Thomas hasn't recused himself, nor has he explained to the American public why he chose not to recuse. Is he duty bound to do so?

Kathleen Clark:

There is no legal requirement that he explained.

But, as a matter of good ethics and good policy, he absolutely should explain himself. I mean, that is the one positive thing I can say about Justice Alito's letters to Congress today, is that he does purport to explain his refusal to recuse. And justices should explain themselves when they refuse to disqualify themselves.

Geoff Bennett:

The Supreme Court, as you well know, adopted a formal code of ethics last year, last November, first time in history it's ever done that.

Is there anything in that code of ethics that speaks to these situations involving Justices Alito and Thomas?

Kathleen Clark:

Yes, there is.

That code of conduct that the Supreme Court adopted purports to change the rule, the law that Congress imposes on justices of the Supreme Court. So, the statute says justices have to recuse when their impartiality might reasonably be questioned.

And that code of conduct suggests they only need to recuse if an unbiased person would question their impartiality, suggesting that the — if it's a biased person who questions their impartiality, then they don't need to recuse. This is not the standard that Congress imposed on justices.

And it seems to be a — I think the justices apparently thought it gave them some wiggle room, and now Alito is trying to use that wiggle room to justify his refusal to recuse.

Geoff Bennett:

And at least as it stands right now, the justices themselves are the final arbiters here.

Kathleen Clark:

Yes, and that's a very important point.

The justices themselves individually decide whether or not to recuse. There's a basic concept in law and in ethics that someone should not be the judge of their own case. And we see the importance of that standard in this situation. Alito — Justice Alito claims that no reasonable, unbiased person would question his impartiality and seems to be suggesting that those of us who have argued that he needs to recuse are somehow biased.

He's accusing untold number of experts of bias, when he's unable to recognize his own bias.

Geoff Bennett:

Katherine Clark is a professor of law at Washington University in St. Louis. Thanks so much for joining us.

Kathleen Clark:

Thank you.