Semafor Signals
Alito won’t recuse himself from election cases, despite Supreme Court’s ‘crisis of legitimacy’
Insights from The Brennan Center, The Economist, and The Atlantic
The News
Justice Samuel Alito has declined to recuse himself from forthcoming US Supreme Court cases involving the 2020 presidential election and the Jan. 6 Capitol riot, despite the controversy over two flags flown over his properties.
Both an upside-down American flag that flew outside Alito’s home in January 2021, and an “Appeal to Heaven” flag flown outside his vacation home were symbols used by Trump supporters who falsely claimed widespread fraud in the 2020 election.
In a letter to Congress on Wednesday, Alito said his wife flew the flags and he was not involved in the decision. He added that he was “duty bound” to reject calls from a growing chorus of Democratic lawmakers to recuse himself. While the court has guidelines that indicate when a justice should consider recusal, the decision ultimately lies with the justices.
SIGNALS
Scandal highlights failure of Supreme Court’s ethics rules, observers say
The flag scandal shows that the Court’s recently released code of ethics is falling short — and requires Congress to step in and shore up rules for justices, two Brennan Center experts wrote. The court “needs genuine ethics rules, not the hazy and unenforceable guidelines it approved last year that have no teeth,” The Chicago Sun-Times editorial board wrote, adding that Senate Judiciary Committee head Dick Durbin has a “civic duty” to hold hearings on Alito’s actions. Judicial watchdog group Fix the Court suggested that Congress could appoint an inspector general to investigate potential misconduct, or the court could take other steps to “self-regulate.”
Eroding public faith in highest court could pave way for violence
Alito and Justice Clarence Thomas’ recent ethics scandals, alongside the court’s lurch to the right and spate of controversial landmark decisions, have contributed to a crisis of legitimacy, the Christian Science Monitor reported. After decades as the most-trusted government institution, faith in the court dropped to a record low last year, pulled down by skeptical Democrats and Independents. Some lawmakers see the rapid erosion of trust as a danger to democracy. Without “a trusted referee,” political science experts wrote for The Washington Post, the US “becomes increasingly vulnerable to political disagreements spilling out of the nation’s political and legal systems and into the realm of force and violence.”
Democrats fret over what another Trump presidency could mean for the court
Fearing another Trump presidency, a growing number of liberal commentators are urging Supreme Court justice Sonia Sotomayor to retire. Top Democratic lawmakers have warned of a repeat of the situation whereby justice Ruth Bader Ginsburg ignored calls to resign, then died in the final months of Trump’s presidency, allowing him to push the court further right. Liberals are also concerned about how the court will rule on Trump’s claim that he should have absolute immunity from criminal prosecution. If the court decides in Trump’s favor and he is reelected, he “could easily conclude that he faces few practical limits on his authority,” wrote Ronald Brownstein, a senior editor for The Atlantic.
