John Roberts Is in Tight Spot Over Samuel Alito

U.S. Supreme Court Chief Justice John Roberts is under increasing pressure to remove Justice Samuel Alito from Donald Trump‘s presidential immunity case.

Trump, the presumptive 2024 Republican presidential nominee, was charged in Washington, D.C., with illegal interference in the 2020 election, attempting to overturn the result and encouraging the January 6, 2021, riot at the U.S. Capitol. He has pleaded guilty and has taken a case to the Supreme Court, arguing that he has presidential immunity from prosecution.

Alito’s house flew a “stop the steal” flag in the days after the 2020 presidential election, allegedly to support Trump’s spurious claim that Joe Biden had stolen the election. In a letter to Roberts this week, House Judiciary Committee Democrats asked him to outline how the court plans to use its new code of conduct to deal with the Alito controversy.

The letter points out that the code of conduct prohibits Supreme Court justices from endorsing political candidates and also compels justices to remove themselves from cases in which their “impartiality might reasonably be questioned.” The code of conduct was introduced last year.

Newsweek reached out to the Supreme Court and Alito’s office for comment.

Representative Jerry Nadler, a New York Democrat, wrote for all Democrats on the committee when he said: “Adopting a code of ethics and failing to enforce only serves to reinforce the perception that Supreme Court justices operate without consequences for clearly unethical behavior.”

Nadler then asked: “Do you plan to request Justice Alito recuse himself from any cases related to Donald Trump? If not, why not?”

The letter was sent on Wednesday, the same day that Alito informed a Senate committee in writing that he would not recuse himself from Trump’s immunity case.

In his letter, ​​Alito said he was not involved in flying an upside-down U.S. flag outside his house in Alexandria, Virginia. The inverted American flag, a nautical distress signal, had become a symbol of the “stop the steal” movement in which Trump and his supporters falsely claimed that Biden had stolen the 2020 presidential election.

Alito wrote in the letter that his wife, Martha-Ann, had flown the upside-down flag in response to deliberately provocative anti-Trump signs hung by their neighbor.

Alito, who was nominated to the Supreme Court by Republican President George W. Bush, wrote that the incident does “not meet the conditions for recusal … and I therefore have an obligation to sit [in the Trump case].”

The letter was addressed to the Senate Judiciary Committee Chair Dick Durbin and Senator Sheldon Whitehouse, two Democrats who had called for Alito to recuse himself from the Trump case.

“I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside-down flag until it was called to my attention,” Alito wrote. “As soon as I saw it, I asked my wife to take it down, but for several days, she refused.”

He added that they own their house jointly and that his wife has a legal right “to use the property as she sees fit.”

New York attorney Colleen Kerwick told Newsweek that federal law mandates that a Supreme Court judge must recuse themselves if their impartiality may be questioned.

“Any justice of the United States should disqualify [them]selves in any proceeding in which [their] impartiality might reasonably be questioned,” the relevant law states, Kerwick said.

She said a judge’s spouse “flying a Stop the Steal symbol briefly may not rise to the level of warranting recusal.”

“Judge Alito is in a difficult position,” she said. “There is a public perception of bias. To alleviate it, there may be a risk that he would ‘bend over backwards’ to avoid any appearance of partiality, thereby inadvertently favoring the opposing party.”

Carl Tobias, a law lecturer at the University of Richmond in Virginia, told Newsweek that Alito’s letter to the Senate committee members was lacking in detail and suggests the Supreme Court code of conduct is ineffective.

“The letter really does not say very much, which makes it difficult to comment,” he said. “Justice Alito just seems to say that his spouse flew the flags and that no reasonable observer could conclude that he had a conflict. The response does suggest that the code SCOTUS [Supreme Court of the United States] adopted may prove to be ineffective.”

He noted an opinion article in The New York Times by Democratic Maryland Representative Jamie Raskin on Wednesday which points out that his recusal is mandated by federal law and the Constitution.

2024 NEWSWEEK DIGITAL LLC.

This story was originally published June 1, 2024, 3:00 AM.