Justice Alito says the Supreme Court's fake ethics code lets him be unethical - Ian Millhiser - Vox

Justice Alito says the Supreme Court's fake ethics code lets him be unethical - Vox

By Ian Millhiser 

Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

In a development that should surprise absolutely no one, Justice Samuel Alito announced in a brief letter on Wednesday that he will not recuse himself from two cases involving the January 6 insurrection and former President Donald Trump’s attempt to steal the 2020 election.

Alito faced widespread calls for his recusal, including from many Democratic members of Congress, after the New York Times reported that flags associated with the movement to overturn President Joe Biden’s 2020 electoral victory flew outside his Virginia home and his New Jersey vacation home. His letter announcing that he will not recuse is addressed to many members of the US House who called for him to withdraw from the two cases.

Alito is the Court’s most reliable Republican partisan, and he routinely makes statements from the bench and in his published opinions that are far less ambiguously partisan than, say, the upside-down American flag that flew outside his house in Virginia.

Two things are still notable about the letter, however. One is that Alito blames both flags on his wife, Martha-Ann, (“My wife is fond of flying flags. I am not,” he wrote) and claims that he asked his wife to take down the upside-down flag, “but for several days, she refused.” 

The second is that Alito rests his legal argument on an almost entirely unenforceable code of ethics that the Supreme Court released in 2023. The recusal rules in that effectively nonbinding ethics code are far less stringent than a federal law governing judicial recusals, which applies to the Supreme Court.

Last November, when the Court released this ethics code, I described it as “worse than nothing.” The code is almost entirely unenforceable, and it codifies weak restrictions on justices accepting gifts.

Yet it turns out that I was not cynical enough. I did not anticipate that a justice would cite unenforceable provisions of the Court’s internal ethics code to effectively nullify the justices’ obligations under a more stringent federal law. But that’s exactly what Alito did.