Alito says the Supreme Court’s fake ethics code allows him to be unethical

Supreme Court Justice Samuel Alito is seen after a swearing in ceremony for Mark Esper to be the new US Secretary of Defense July 23, 2019, in the Oval Office of the White House in Washington, DC.

In a development that should surprise absolutely no one, Justice Samuel Alito announced in a brief letter on Wednesday that he will not recuse himself from two cases involving the January 6 insurrection and former President Donald Trump’s attempt to steal the 2020 election.

Alito faced widespread calls for his recusal, including from many Democratic members of Congress, after the New York Times reported that flags associated with the movement to overturn President Joe Biden’s 2020 electoral victory flew outside his Virginia home and his New Jersey vacation home. His letter announcing that he will not recuse is addressed to many members of the US House who called for him to withdraw from the two cases.

Alito is the Court’s most reliable Republican partisan, and he routinely makes statements from the bench and in his published opinions that are far less ambiguously partisan than, say, the upside-down American flag that flew outside his house in Virginia.

Two things are still notable about the letter, however. One is that Alito blames both flags on his wife, Martha-Ann, (“My wife is fond of flying flags. I am not,” he wrote) and claims that he asked his wife to take down the upside-down flag, “but for several days, she refused.” 

The second is that Alito rests his legal argument on an almost entirely unenforceable code of ethics that the Supreme Court released in 2023. The recusal rules in that effectively nonbinding ethics code are far less stringent than a federal law governing judicial recusals, which applies to the Supreme Court.

Last November, when the Court released this ethics code, I described it as “worse than nothing.” The code is almost entirely unenforceable, and it codifies weak restrictions on justices accepting gifts.

Yet it turns out that I was not cynical enough. I did not anticipate that a justice would cite unenforceable provisions of the Court’s internal ethics code to effectively nullify the justices’ obligations under a more stringent federal law. But that’s exactly what Alito did.

How the Court’s fake ethics code differs from the federal recusal law

The federal statute governing judicial recusals begins with a fairly straightforward declarative sentence: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Notably, this statute applies not just to lower court judges — who actually are bound by a separate ethics code — but also to “any justice.” Justice Alito is a justice.

In his letter refusing to recuse, however, Alito does not even mention this federal statute. Instead, he spends nearly the entire letter explaining why he is not required to recuse himself under the much weaker standard announced in the Court’s own unenforceable ethics code.

That standard begins with a presumption against recusal: “A justice is presumed impartial and has an obligation to sit unless disqualified.” It uses weaker language to describe when justices should recuse themselves — stating that a justice “should” recuse when their impartiality reasonably can be questioned, not that a justice “shall” recuse. And it qualifies the obligation to recuse by stating that the duty to recuse is only triggered when a “reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”

So, while the federal statute begins with a declarative statement that justices are sometimes required to remove themselves from certain cases, the Court’s own code begins with a statement that justices typically have an “obligation” not to recuse themselves. And the Court’s unenforceable code also states that a justice can be relieved of his duty to recuse if there are “relevant circumstances” that the public may not be aware of.

And so Alito spends much of his letter laying out what he claims these relevant circumstances are. Among other things, he points to the fact that he and his wife “own our Virginia home jointly,” giving her a “legal right to use the property as she sees fit.” He also mentions that Martha-Ann purchased the New Jersey home “with money she inherited from her parents” and that the house is “titled in her name.”

Regardless of whether anyone is likely to find this explanation persuasive, Alito mentions these facts solely to argue that he is not bound to recuse under the Court’s weak internal ethics code. Because the federal statute is also binding on “any justice,” he also had an obligation to, at the very least, explain why he was not bound to recuse himself under this more stringent law.

Alito’s letter also exposes another weakness in the Court’s internal code. Suppose that a news outlet had discovered that a lower court judge flew an inappropriately political flag outside of their home, and the judge tried to dodge a request for recusal by pointing out that the flag was flown by their spouse. A federal trial judge’s decision not to recuse could be appealed to a federal circuit court, and a circuit judge’s decision not to recuse could be appealed to the Supreme Court.

Thus, the rules governing federal judges who do not serve on the Supreme Court ensure that a judge asked to recuse from a matter will not have the final decision-making authority in their own case.

An official commentary attached to the Court’s internal code, by contrast, states that “individual Justices, rather than the Court, decide recusal issues.” So Alito has the final word on whether Alito has behaved ethically, and on whether he is relieved of his obligation to recuse because his wife bought their vacation home with her inheritance.

It was clear the day that the Court released its internal code that it wouldn’t have much impact on the justices’ behavior, in large part because most of the provisions of this code have no enforcement mechanism. But Alito’s letter reveals something much more worrisome about the code: It apparently will be used by the justices to justify ignoring their obligations under federal law.

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