Sam Alito is a problem
Chief Justice John Roberts must take responsibility for his court. If he does not, what follows will be his legacy — and we’ll have to deal with the fallout.
It’s been clear for some time that Justice Sam Alito was the Fox News (or an even further right-wing channel) justice on the U.S. Supreme Court bench.
The past two weeks have helped to cement that into the public consciousness for those who don’t hear him at oral arguments or read his opinions — particularly his concurrences and dissents.
He doesn’t have a legal philosophy beyond counting to five, and he doesn’t write opinions for the ages. He writes for now and, almost always, for Republicans.
He actually is, to turn the phrase on its head, a politician in robes.
His household also apparently is, for lack of a better phrase, really into flags.
On Wednesday, the New York Times was forced to put another incendiary, far-right flag photo from another Alito household on its home page. This was an “Appeal to Heaven” flag flown at his vacation home in New Jersey that that the Times described as being a sign of “a religious strand of the ‘Stop the Steal’ campaign” and showed it appearing in photos from January 6, 2021. The first was the upside-down American flag flown at his home in Virginia in the aftermath of January 6, 2021, that had also been, the Times reported, used as a “Stop the Steal” symbol.
I say the Times was forced to do this because we should not be here, and it is a problem that we are.
ALSO READ: Law Dork’s exclusive report from May 19 on Alito’s beer stock trades.
Sam Alito is a problem.
That he should recuse himself from the Jan. 6 obstruction case and Trump immunity case is clear.
Alito’s actions go far beyond meeting the standard for recusal that his “impartiality might reasonably be questioned.” It is unreasonable at this point not to question his impartiality.
He should recuse. But, he almost certainly won’t.
The real question now is what the court does about it.
If Alito is unwilling to recuse himself from these cases, where recusal is so obvious and when the court’s ethics have been a prominent topic of discussion over the past two years, he must be sidelined in one way or another by his colleagues. No, they cannot force him off a case, but they can make it uncomfortable for him — and make him irrelevant. For the sake of the institution, they — at least seven of them — must.
Chief Justice John Roberts must take responsibility for his court. He can do so — and he can and must be supported in doing so by the three Democratic appointees and the three Trump appointees.
That can start with behind-the-scenes pressure on Alito to recuse. Next, if that doesn’t work, justices can make public statements about the importance of justices adhering to the Code of Conduct when it comes to recusal. Finally, if necessary, they should stick together in the decisions themselves — making compromises where necessary to stay as one — and render his vote irrelevant. If he does participate, they must call out his participation in the cases as unbefitting a justice.
If that makes things awkward at the court, so be it. It is more important than that.
Roberts must do the work for this and take the action necessary now to protect the legitimacy and future of the Supreme Court.
If he does not, what follows will be his legacy — and we’ll have to deal with the fallout.
It is true that I’ve already written that the Supreme Court’s men aren’t here to protect us. I still believe that. And yet, I also think that this needs to be written now, in light of these past two weeks.
We must maintain the ability both to know something is almost sure not to happen and to nonetheless expect it. To do otherwise is to potentially lose sight of what we should be able to expect from our leaders. And I’m unwilling to go there.
And yes, Alito is, ultimately, just a symbol — a red flag, if you will. As I wrote about earlier today, the underlying problems with the court are not going to be solved by the court. That will take more work and be a much longer term project — one already underway, but that must take center stage.
For tonight, though, I am focused on today’s Supreme Court and today’s crisis that Roberts — whether he likes it or not — is facing.
Chris, I really hope you’re right and some change happens. But lifetime appointments means never having to say you’re sorry.
Thank you for saying this. I agree.
The Chief Justice — and the responsible among Associate Justices — have a duty to respond. Somehow they must address this gross impropriety.
What you suggest sounds eminently reasonable. One can only hope for timely intestinal fortitude and moral certainty.