He Won’t Do Either. But Alito Needs to Resign, Not Just Recuse. By Josh Marshal

He Won’t Do Either. But Alito Needs to Resign, Not Just Recuse

By Josh Marshall 

May 30, 2024 2:11 p.m.

 

I wanted to share a few thoughts about the Sam Alito problem. I don’t want to preach to the choir on this, but there are two points which should be highlighted. The first is that even on its own terms, Alito’s rationale for not recusing himself doesn’t hold up. His argument is essentially this: My wife is her own person with her own views and ways of expressing herself. I asked her to stop but she refused to do so and I couldn’t compel her to do anything. He notes that they co-own the properties in question, so even in the narrow sense of control over a piece of property, he couldn’t dictate anything. It was his wife, not him. He did what he could, but couldn’t do more. End of story.

This is not how federal ethics guidelines work. They make very clear that the appearance of a conflict of interest or impropriety, for these purposes, counts as much as actual ones. They also make clear that the actions of a spouse count toward creating such appearances even though, certainly in the early 21st century, a judge can’t dictate a spouse’s actions. The ethics guidelines specifically deal with the spouse issue. And they say “it’s my spouse, not me” isn’t a defense.

It’s worth noting that this isn’t about Martha-Ann Alito’s behavior. She is entitled to say and act however she wants. She doesn’t have to abide by her husband’s orders. But in a situation like this, it is incumbent on Alito to say he can’t ethically carry out the assignment and recuse himself. It’s not Martha-Ann Alito’s problem or the American public’s problem. It’s Sam Alito’s problem. He has to recuse himself. Or, to be more precise, maybe there’s some explanation that excuses him from recusing himself. But “it was my wife, not me” can’t be it.

Whatever else he is, Alito is a smart guy. He knows this. But he said it anyway. That’s because no one can force his hand and he doesn’t care what anyone thinks. He is not accountable. And he knows it.

We then have an additional but by no means lesser issue which The Bulwark’s Jonathan Last elucidates nicely here. Alito has now told multiple versions of his story, each of which have been debunked by subsequent reporting. To put it more baldly, Alito has now repeatedly lied about what happened. The contradictions aren’t just about details or things liable to incomplete memory. They’re basic issues of order of events which make his explanations of one thing causing another thing impossible.

There’s the additional matter that Alito provided his only substantial response about this story to a favored reporter at Fox News. Going to Fox as opposed to CNN or the Times or the news desk at The Wall Street Journal might not appeal to Alito’s Democratic critics. But that’s not the point. A politician might do this, looking for a sympathetic ear to hear his story. But that’s precisely the issue. Justices aren’t supposed to be politicians. One needn’t believe that judges are disinterested legal umpires, coming to each question with no commitments or ideological agenda or beliefs. But justices are supposed to maintain the trust of reasonable observers that they are operating with a basic integrity and fairness. Lying and rapidly getting caught out in those lies doesn’t meet that standard. Nor does offering your explanation to a rabidly partisan news organization. Alito’s reaction to this controversy has been sullen, defensive, mendacious and overtly partisan. Those are all total nonstarters for how a justice is supposed to conduct himself or herself. He does it because he’s corrupt and he’s confident in his impunity.

Oh, and one other thing. He does it because he wants to be sure he is part of this decision because he is personally invested in the outcome. Again, disqualifying in itself.

It’s worth remembering how limited the ask is here. Alito has violated basic guidelines of ethics, though technically he appears to claim these don’t apply to the High Court. He has willfully lied to the public. He has certainly acted in a partisan and polemical manner unsuitable to a justice. But no one of any stature has asked more than that he recuse himself from cases tied to the January 6th insurrection. Let’s zero in on this. He is only being asked to recuse himself because there is an appearance of a conflict of interest whether he can fairly adjudicate cases tied to the insurrection as an apparent supporter of the insurrection! Or, to be very generous, as the spouse of an apparent supporter of the insurrection. This is not comparable to sitting out a case where ExxonMobil is a defendant because you own some Exxon stock. Any colorable suggestion that you support or supported the overthrow of the government should obviously be a deal killer for being anywhere near the Supreme Court. And yet, no one of any stature is even asking for that — just not sitting on cases where his apparent support for the insurrection might represent a conflict.

At this point the scandal is less his conflicts or his lying or even his apparent support for the insurrection. It’s the confident imperviousness to any accountability in itself.

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