Why Alito should, but probably won’t, recuse himself from Jan. 6 cases

The Supreme Court has two major pending decisions related to the Jan. 6 insurrection and Donald Trump: the former president’s immunity claim in his federal election interference case and an appeal over an obstruction charge used against Trump and other Jan. 6 defendants.

At both hearings, Justice Samuel Alito suggested he favored the arguments by Trump and Jan. 6 rioters.

As we await these crucial rulings, likely coming by late June, a report by The New York Times has raised questions about the Republican appointee’s impartiality.

The Times reported Thursday:

“The upside-down flag was aloft on Jan. 17, 2021,” the Times reported, citing photos. In an email from Jan. 18, 2021, reviewed by the Times, a neighbor wrote to a relative that the flag had been upside down for several days at that point.

The Times reported that Alito said in an emailed statement that he “had no involvement whatsoever in the flying of the flag” and that it “was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Even if true, Alito’s statement at least suggests that he understands that flying the flag in that way, at that time, was a bad thing. Hence the need to distance himself from it.

And it’s not totally clear what he was saying that “Mrs. Alito” was responding to that was “objectionable and personally insulting.” The Times reported that “the justice’s wife, Martha-Ann Alito, had been in a dispute with another family on the block over an anti-Trump sign on their lawn.” But if the justice’s wife was responding to an anti-Trump sign, why would that have been “personally insulting”? Alito’s statement refers to “signs” plural, so this isn’t entirely clear.

Separately, the justice reportedly told Fox News’ Shannon Bream that a neighbor had put up a sign addressing Mrs. Alito and blaming her for Jan. 6. It’s unclear why this neighbor would have allegedly leveled that attack solely at Mrs. Alito, but theoretically that could explain the personal insult part (while also showing that she may have understood the significance of the inverted flag). Alito reportedly told Bream that his wife hung the flag that way “for a short time,” which, again, implicitly acknowledges the impropriety of doing so.

At any rate, Alito’s statement to the Times raises all sorts of questions that it doesn’t answer: Did he see the flag at his own home? If so, did he consider what it conveyed to the public as a Supreme Court justice weighing a 2020 election case? What was Mrs. Alito’s response supposed to convey? Does he agree or disagree with the message?

Regardless of the answer to these questions and others, it may be more important how the message from the Alitos’ home was received. The Times reported that neighbors “interpreted the inverted flag as a political statement by the couple.” That matters because, according to the high court’s (unenforceable) code of conduct, justices aren’t supposed to engage in political activity, which includes publicly endorsing or opposing candidates.

And when it comes to recusal specifically, the code says that a justice “should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”

Despite all of that — and perhaps because of it, given the justice’s perceived victimhood — don’t expect Alito to recuse himself from Jan. 6-related cases. Indeed, he has already refused to recuse from a tax case this term, in a move further calling his judgment into question. In that case, Moore v. United States, in which a decision is still pending, Alito took the step of (unconvincingly) explaining his non-recusal in a statement. (Justice Clarence Thomas has, without explanation, ignored recusal calls in Jan. 6-related cases.)

In light of this new report, Alito should at least explain himself again. But even if he were to do so this time, given his past behavior and response to this latest story, don’t expect him to step aside.

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This article was originally published on MSNBC.com