Justice Alito Sullies Integrity of Supreme Court

“Professional baseball would never allow an umpire to continue to officiate the World Series after learning that the pennant of one of the two teams competing was flying in the front yard of the umpire’s home. Nor would an umpire be allowed to call balls and strikes in a World Series game after the umpire’s wife tried to get the official score of a prior game in the series overthrown and canceled out to benefit the losing team. If judges are like umpires, then they should be treated like umpires, not team owners, team fans or players.” – U.S. Rep. Jamie Raskin

When the U.S. Supreme Court unveiled its so-called Code of Conduct late last year, I said it would do nothing to restrain unethical behavior by the Justices.

Justice Samuel Alito has wasted no time in proving me right.

The upside-down flag – a symbol of allegiance to the Big Lie about the 2020 election – displayed at Alito’s home in January 2021 violates even the watered-down provisions of the code and disqualifies him from the Jan. 6 cases that are before the court. His feeble explanation, that it was his wife’s decision to fly the flag and she denied his requests to take it down.

According to the code, “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned,” including such instances in which the Justice’s spouse is known by the Justice to have an interest in the outcome of the proceeding.

Even if Alito does not share his wife’s false beliefs about the 2020 election, he can hardly argue that her interest is not known to him. Lest her decision to fly that flag – if, indeed, it was solely her decision – be dismissed as a fleeting whim of passion, another symbol of loyalty to Trump’s lies flew over the Alito’s vacation home as recently as last summer.

These partisan displays, and Alito’s obstinate refusal to recuse himself, are merely the latest examples of Alito’s corruption and contempt for ethical standards. He accepted the gift of a luxury fishing trip with a billionaire whose hedge fund has repeatedly had business before the court, and failed to disclose it. The Code of Conduct says justices “should comply” with regulations that prohibit judicial officers from accepting gifts “from anyone who is seeking official action from or doing business with the court” and require the disclosure of gifts.

He is credibly suspected of leaking to conservative activists his ruling in 2014’s Burwell v. Hobby Lobby, exempting private companies from regulations in the case of religious objections. Another of his rulings, in 2022’s Dobbs v. Jackson Women’s Health Organization also was leaked.

While Alito’s behavior clearly violates the court’s Code of Conduct, as I noted in November the code lacks any enforcement mechanism. In fact, “adapting” the federal judiciary’s code of conduct, the court conspicuously dropped word “enforce” from the opening section.
U.S. Rep. Jamie Raskin makes a convincing argument that the Department of Justice can petition the other justices to require Alito’s recusal under the due process clause of the U.S. Constitution and a federal statute that mandates judicial disqualification for questionable impartiality.

But the other justices, as Raskin notes, do not need to wait for such a petition. Alito’s past behavior already has made a mockery of judicial ethics; his refusal to recuse himself from cases related to the 2020 election is just another slap in the fact to the American people. If his fellow justices do not step up to their constitutional obligation to require his recusal, they will be a party to his mockery.

Marc Morial is President and CEO of the National Urban League.