The controversy over Justice Samuel Alito flying the American flag upside-down — an apparent nod to Donald Trump’s “Stop the Steal” campaign — in the days after the January 6th Capitol attack would be outrageous if it were not just yet another example of Supreme Court justices behaving badly, ignoring rules designed to ensure that judges decide the cases before them fairly and impartially.
Of course, genuine impartiality is immensely important to litigants appearing before the court. But ensuring the appearance of impartiality is even more critical.
The Supreme Court is the College of Cardinals, the high priesthood of American democracy. And like any priesthood, the court’s authority is entirely moral. Once the court loses that authority, once its decisions begin being perceived as merely political, the court will no longer be unquestioningly obeyed and it will lose its ability to settle controversial cases.
That’s why the spate of allegations involving Justices Alito and Clarence Thomas are so disturbing. Perhaps it’s perfectly possible to accept free Winnebagos and luxury trips without it actually influencing your interpretation of obscure federal statutes, but that’s hardly the point.
In order to function as the ultimate backstop for the rule of law, Supreme Court justices must be like “Caesar’s wife” — completely above suspicion. But in an odd reversal of the proverb, Alito and Thomas are trying to avoid responsibility by throwing their wives under the bus. Alito is blaming his wife, Martha-Ann, for hoisting a “Stop the Steal” symbol in front of his house, while Ginni Thomas was so deeply involved in the effort to overturn the 2020 election results that she ended up testifying before the January 6th Committee.
The issue here isn’t that Supreme Court spouses should not be free to live their own lives. It’s that no one has a right to sit on the Supreme Court or to sit in judgment on any particular case. To maintain the court’s authority, justices must be pillars of rectitude. Sometimes that means taking one for the team and recusing yourself even if you don’t believe it’s strictly necessary. Perhaps Justice Thomas really isn’t swayed by Ginni Thomas’s political opinions. But when your wife is actively lobbying President Trump’s chief of staff with things like “Release the Kraken and save us from the left taking America down,” it’s reasonable for people to ask themselves if she isn’t lobbying you as well.
The statute that governs federal judges and (despite what they might want to believe) Supreme Court justices provides, in part, that “Any justice . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The question here is not whether the justice is actually impartial or has been influenced. The question is whether somebody might reasonably think he or she could have been.
The bigger problem here — and one that goes far beyond the January 6th-related cases that are getting all the attention — is that the Supreme Court values collegiality too much and accountability too little. Lower court judges are held to the statutory recusal standards by the courts above them, but at the Supreme Court, every justice decides the question of recusal for his or herself, and there is no review.
There are several proposals for shoring up the court’s ethics. One idea is to create an Inspector General’s Office for the federal court system, which would be tasked with investigating misconduct both at the Supreme Court and in the lower courts. While this would create some accountability, it might also create more problems than it solves, since an IG will be investigating potential problems long after the fact. Having the inspector general issue a scathing report about a justice’s failure to recuse him or herself from a case that resulted in a 5-4 decision is not going to do anything to enhance the court’s reputation.
One narrower possibility is to create a procedure that would allow the Supreme Court as a whole to vote on whether an individual justice should be recused from a particular case. This has the advantage of applying a version of the accountability that already keeps both district courts and appellate courts on the straight and narrow. It also addresses problems while they can still be fixed. Finally, and maybe most importantly, it enhances public trust in the court by making recusal transparent.
Again, this isn’t a question of whether a justice is actually biased, and being recused is not a mark of shame. It’s simply a recognition that, in some cases, having a justice help decide a specific case may diminish the court’s authority rather than enhance it.
This isn’t a theoretical concern. If Donald Trump avoids a federal trial on the January 6th charges on a 5-4 vote because neither Alito nor Thomas recused himself, everyone, on both the left and the right, will be convinced that the fix was in. Trump’s supporters will be happy about it and his opponents will be furious, but for both sides, the court’s reputation will take a hit — one from which it may never recover.
Nobody wants that. The alternative to an impartial, trusted Supreme Court is chaos, dysfunction and, ultimately, radical reform. Hopefully, the Supreme Court will decide to clean its own house. But if it won’t, Congress should.
Chris Truax is a charter member of the Society for the Rule of Law and an appellate attorney.
