On Tuesday, Senator Dick Durbin (D-Illinois) called on Justice Alito to recuse himself from cases involving former President Donald Trump and any other “cases related to the 2020 presidential election and January 6th attack on the Capitol.” (READ MORE: Durbin, Whitehouse Request Meeting With Chief Justice Roberts, Urge Roberts To Ensure Justice Alito Recuses Himself In 2020 Election Cases)
Speaking on the Senate floor, he asked: “Why should he have the sole power to decide whether his recusal from the case is necessary?”
Such a question is akin to asking: “Why should the president be able to veto legislation?”
Unless one is in an academic setting, or engaged in a Socratic dialogue on the merits of a given norm, or even in a public protest about a perceived injustice in the law, it seems pointless to ask why a rule is a rule. Whether or not Durbin is aware, the rule for Supreme Court recusals is, in fact, that the choice should fall upon the discretion of the justice in question. (READ MORE: Code of Conduct for Justices November 13 2023)
This latest statement from Durbin came after a prior call for Alito’s recusal, to which the justice responded with a letter explaining why he would not grant the Senator’s request. Addressing the first point of controversy, which involves the flying of an upside-down American flag outside the Alitos’ primary residence in Virginia, the Justice wrote: “My wife and I own our Virginia home jointly. She therefore has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly.”
Flying the American flag upside-down is an historic practice. But its recent usage by supporters of former President Trump has added a more explicitly partisan connotation to the symbol. Thus, many have accused Alito of having an explicitly partisan flag in his residence.
As for the flying of the even more controversial “An Appeal to Heaven” flag in their Long Beach vacation home, the Justice explained: “My wife is fond of flying flags. I am not. My wife was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.” Alito then went on to explain how neither he nor his wife were “aware of any connection between [the ‘Appeal to Heaven’] flag and the ‘Stop the Steal Movement.’”
Alito concluded: “A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that this event does not meet the applicable standard for recusal. I am therefore duty-bound to reject your recusal request.”
Durbin referenced the letter in his statement this Tuesday, and continued to question the justice’s impartiality, not only in terms of assessing cases relating to the aftermath of the 2020 election, but also in judging the conditions that would warrant his own recusal.
Perhaps an adequate response to Durbin’s question, aside from simply pointing to the Code of Conduct for Justices, would be to point him to Article III of the Constitution, and recommending a lecture on separation of powers.
But, of course, ignorance is likely not what prompted Durbin to make such a statement, as he is the chair of the Senate Judiciary Committee. Far more likely, he is wielding his political power to do precisely what Justice Alito has indirectly — and quite cleverly — accused him of trying to “affect the outcome of Supreme Court cases.”
