Supreme Court justices seldom give reasons for decisions to recuse themselves. Even rarer are explanations for deciding to participate in a case when they have been accused of conflicts of interest. Justice Samuel Alito is an exception. He seems eager to explain himself. Whether his explanation has helped or hurt his cause is open to question, the New York Times reports. On Wednesday, Justice Alito wrote to Democratic lawmakers saying he was not only permitted but also obligated to sit on two cases arising from the Jan. 6, 2021, attack on the Capitol despite controversies over flags displayed outside his houses associated with the “Stop the Steal” movement. Experts in legal ethics said they welcomed Alito’s decision to explain himself. They were not persuaded by the reasoning in his letters, which said the flags had been flown by his wife and so did not require him to step aside in the pending cases, on whether former President Trump is immune from prosecution and on whether a federal law against obstruction covers participants in the Jan. 6 assault.
The controversy surrounding Alito reflects wider questions about ethics and politics at the court. Public trust in the court has fallen amid ethics scandals in recent years, many involving whether justices should have recused themselves, and scrutiny is certain to be intense as they decide cases concerning Trump that could influence the outcome of the election. University of Virginia law Prof. Amanda Frost said the quality of the reasoning in Alito’s letters had shortcomings. “I agree that Justice Alito’s wife has a First Amendment right to express her views,” Frost said. “But if she does so on their shared property, in a way that would lead a reasonable person to question his impartiality, then he should respond by recusing himself.” Frost added that her conclusion would be no different had the controversy involved a liberal member of the court like Justice Ruth Bader Ginsburg, who died in 2020. “I would say the same,” she said, “if Justice Ginsburg’s husband had placed a ‘Gore won’ sign on the lawn of their shared home while the Bush-Gore election was being contested in the courts.” Frost said Alito’s decision to explain himself was part of a positive trend, in keeping with a statement of principles the court issued last year.
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