Perspective: 3 grounds why Alito's flag debate doesn't require his stepping down
I don't approve of displaying the American flag upside-down, especially when it's associated with the insurgents who breached the US Capitol on January 6, 2021, to hinder the validation of the 2020 presidential election. It was unwise for anyone to flaunt the flag at that time in their home, and it's bothersome that it was exhibited in the residence of a Supreme Court judge.
Nevertheless, I maintain that the demands from Democratic leaders and others for Alito to withdraw from the cases pertaining to the January 6 onslaught and the 2020 election pending before the court are flawed. These demands make three critical errors: there's no precedent, no law, and no solid factual basis supporting recusal.
First, let's discuss precedent. The late, esteemed Justice Ruth Bader Ginsburg publicly expressed disparaging views about former President Donald Trump during the 2016 presidential campaign, describing him as a "faker" and hinting at relocating abroad if he got elected. Ginsburg believed her impartiality couldn't be questioned even with these remarks, sitting on several cases involving Trump as the Supreme Court's justice. Despite criticisms, she participated in each case where Trump served as the subject matter without stepping down.
This precedent doesn't direct judges to recuse themselves just because they've expressed their views about a political matter or a politician later involved in a court case.
Secondly, the law doesn't necessitate recusal. Having thoughts on the facts or the law in public matters does not disqualify a judge from deciding these issues. It's only natural that judges, appointed on the basis of their opinions, have opinions on various public affairs. Justice Elena Kagan, for instance, spoke in favor of textualism (the idea that the text of the US Constitution is self-explanatory) in 2015 and has not been barred from considering them from the bench.
Justices often discuss the reality they see, and this doesn't impede them from interpreting the statutes they oversee. For instance, Kagan's Harvard Law School address on textualism did not prevent her from deciding legal cases related to the subject. Maintaining this standard could result in judges being secluded, making the legal system a duller place.
American law unmistakably states that if a condemned person is a family member of a judge, they must recuse themselves—and the same rule applies if the judge or their family has an interest in the matter. However, an opinion on whether the 2020 elections were stolen doesn't demand recusal, nor does openly sharing that opinion.
The only justification for recusal resting on a spouse's actions or views is based on financial interests. To illustrate, consider the examples of circuit judges Stephen Reinhardt, married to Ramona Ripston from the American Civil Liberties Union, and Nina Pillard, married to David D. Cole, the national legal director of the ACLU. They never recused themselves from cases involving their adopted family views.
Lastly, and most significantly, there's no solid factual basis for recusal. Alito denies hanging the inverted flag, and it's not being questioned. His spouse, Martha-Ann Alito, was involved in a social dispute with an unnamed individual. Alito's coerced withdrawal from these matters based on the conflict between his spouse and an unidentified neighbor is out of line.
This case is less complex than that of Justice Clarence Thomas and his spouse, Ginni Thomas, who's deeply immersed in Republican politics in support of Trump. No one denies her involvement, but as Senator Lindsey Graham points out, putting up a flag upside-down in rage doesn't justified disqualification, regardless of what Senator Dick Durbin might say.
While it might be poor judgment to display an upside-down flag in anger, it's a far cry from warranting recusal.
On a Wednesday, the Times said there was a different flag at Alito's New Jersey beach house in the summer - the "Pine Tree Flag," also known as the "Appeal to Heaven" flag. It was also seen at the Capitol by rioters on January 6th. If a flag with a connection to the insurrection movement doesn't make someone recuse themselves, this is even more so for this one, given its historical importance in America. Designed by Col. Joseph Reed, a personal secretary to George Washington, the flag has been used by the Navy since 1775 and has various cultural meanings.
According to the law, facts, and legal precedent, there's no need for Alito to think about stepping down from a case. Moreover, one should be concerned that these kinds of recusal accusations - particularly when made by politicians who might not agree with how an official may vote - could weaken the court's legitimacy. Recusal decisions should be applied neutrally and not just as a way to target opponents on the bench.
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Source: edition.cnn.com
