Russell Wheeler of the Brookings Institute has posted an astute article about the Alito flag kerfuffle and the resulting cries for his recusal from two pending January 6-related cases. Wheeler sets out why the concepts of recusal and judicial misconduct, at least with respect to the Supreme Court, are more legally complicated than Alito’s accusers would like.
There is a much deeper story here about why the Supreme Court has been so resistant to self-policing, especially since incidents like this one (and recent revelations about Justice Thomas’s gifted trips) would seem to erode public confidence in the Court. It is a complicated story worthy of a larger post, but I will note as a placeholder that in the Court’s calculus, a public commitment to specific recusal standards would likely reduce its legitimacy by inviting antagonists to turn recusal into an even more prominent political game. I will offer a more extensive explanation in a forthcoming post.
The Interdependent Third Branch 