Don't ask Alito to recuse — tell him to resign

The conspiratorial antics of Supreme Court Justice Samuel Alito, as exposed recently in the national media, have raised the gravest doubt about his bias in matters before the Supreme Court -- and provoked demands that he recuse himself from any case concerning former President Donald Trump, the 2020 presidential election or the Jan. 6 insurrection.

Published reports have revealed Alito flew an inverted American flag -- a symbol of Trumpist "stop the steal" propaganda -- outside his suburban Virginia home in Jan. 2021, just days after the attack on the Capitol and while the high court was still considering a 2020 election case. With typical manly resolve, the conservative jurist responded by blaming his wife Martha Ann, who supposedly felt insulted by an anti-Trump yard sign on a neighbor's lawn, for that gross ethical trespass.

As Alito knows perfectly well, there is no excuse for his behavior, even if an obnoxious neighbor annoyed Mrs. Alito. The canons that govern judicial conduct in the lower courts state clearly that what he did was inappropriate, and the Supreme Court's own recently adopted ethical code states it even more plainly: "A Justice should not engage in ... political activity." Moreover, the court expressly forbade all of its employees from involvement in politics.

Of course, Alito did not apologize for the brazenly partisan display at his house nor even acknowledge the fresh harm he has inflicted on the court's already badly bruised reputation. No, he merely issued an arrogant dismissal of anyone who questioned his actions, knowing full well that under the rules the justices have set for themselves, no one is ever going to hold him accountable.

READ: Why Alito’s 'stop the steal' flag story just fell apart

This is not Alito's first or only ethical offense. Last year, the investigative news site Pro Publica revealed he had taken a luxury fishing trip to Alaska with Republican billionaire donor Paul Singer, failed to disclose that gift, then failed to recuse himself from a case in which Singer held a substantial financial interest. Rather than admit this blatant violation, Alito brusquely rejected any criticism of his conduct, which nonpartisan legal experts described as outrageous.

Even if the Senate won't discipline Alito (or the equally tainted Justice Clarence Thomas) via impeachment, he should at least be confronted with a demand that corresponds to his offense. The recusal urged by Sen. Richard Durbin (D-Ill.), the excessively deferential chair of the Senate Judiciary Committee, is insufficient.

The proper demand is for Alito's resignation.

Telling this unworthy figure to step down would deliver a brisk message about the minimum standards for a federal judge at any level. And it would say that casually undermining democratic values is unacceptable for a jurist in his elevated position.

What Alito did on those January days is unforgivable for a simple reason. At a time when Trump and his henchmen were seeking to overturn a legitimate election by force and deception, Alito gave an unsolicited public endorsement of their scheme.

By then, Alito certainly knew that the Republican claims of voter fraud, manipulated data systems, foreign interference with voting machines, and stuffed ballot boxes were bogus, with no supporting evidence. He and his colleagues on the court had rejected those claims and confirmed President Joe Biden's victory in their own decisions.

In only one those cases -- which involved Pennsylvania's acceptance of late mail ballots -- did Alito, Thomas and Justice Neil Gorsuch dissent from the majority's rulings against the Republican plaintiffs. But even in that instance they admitted the number of ballots at stake could not affect Biden's claim to the Keystone State's electoral votes or the election result.

Indeed, the Supreme Court decision in the Pennsylvania case, on Feb. 22, 2021, finally and resoundingly underlined the 2020 outcome and quashed the election deniers. Yet one month earlier, Alito had cast doubt not only on the integrity of the election but on the court's own unanimous affirmation of it, a betrayal of his colleagues and his oath.

A Supreme Court justice has no greater responsibility than to uphold the law and safeguard democracy. When Alito mocked that duty, he forfeited the right to keep his job.

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