Alito’s partisan behavior 'casts a dark shadow on the entire Supreme Court': legal expert

01 June 2024

Supreme Court Justice Samuel Alito's partisan behavior is not only endangering his own reputation as a longtime judge, but is also tarnishing the reputation of the Court itself, according to one legal expert.

Earlier this week, Alito refused requests from Senators Dick Durbin (D-Illinois) and Sheldon Whitehouse (D-Rhode Island) — who chair the Senate Judiciary Committee and Senate Budget Committee, respectively — to recuse himself from cases the Court is reviewing that pertain to the 2020 election and former President Donald Trump. The requests to recuse came about after two flags associated with the "Stop the Steal" movement to overturn the 2020 election were seen flying outside of Alito's homes in Alexandria, Virginia and Long Beach Township, New Jersey. Alito blamed his wife for the display of the flags and said he had no role in putting them up.

During an interview with MSNBC host Katie Phang, Vox legal correspondent Ian Millhiser, who is also an attorney, emphasized how scandalous it was for a federal judge — particularly a member of the Supreme Court justice — to allow himself to be put in a position where his impartiality could be reasonably doubted. He said this includes actions by judge's spouses.

"The burden of being married to a judge is much, much greater in that you have this obligation to not create the appearance of partiality or the appearance of any kind of impropriety," Millhiser said.

Phang pointed out during the interview that there are strict requirements in places for federal judges where they are required to recuse themselves from any case where it could be perceived that they have a reasonable bias for or against any of the parties involved. Millhiser opined that Chief Justice John Roberts — who has declined senators' requests to meet with them to discuss both Justices Alito and Clarence Thomas — is also ignoring the seriousness of Alito's flag controversy.

"I think that Roberts is sort of operating in a world where the Supreme Court can act like it's above it all," Millhiser said. "What I think Roberts doesn't understand and what I think Alito doesn't understand is the rules don't just exist to protect us from biased justices — the rules exist to protect the justices from themselves."

"The reason why you don't go flying political flags outside of your home when you're a judge, the reason why you don't create the appearance of partiality, is because then, people including United States senators start reasonably questioning and saying, 'wait, do we really want to defer to these people? Do we really want them to not have any political scrutiny?" He continued. "The reason you don't do it is because, when you're a powerful political figure, and you start engaging in inappropriate ways, the New York Times starts looking into you. and you don't want that."

Later this month, the Supreme Court is set to issue rulings on at least two major cases impacting the 2024 election: One in the case of United States v. Trump (the presidential immunity case) and another in Fischer, Joseph W. v. United States (a January 6 rioter challenging the legality of a charge). Alito has said that he has an "obligation" to sit on both of those cases and weigh in on the final decision.

Millhiser asserted that by undermining the appearance of objectivity, Alito was effectively undermining the nation's highest judicial body and possibly causing lasting damage to the weight of the Court's future decisions.

"The fact that the justices, or at least Alito is willing to blow past these, it doesn't just undermine him, it doesn't just raise questions about whether we can trust this court, it casts a dark shadow on the entire Supreme Court as an institution," he said.

Watch Millhiser's comments on MSNBC below, or by clicking this link.

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