Weekly Spotlight: Refusal of Recusal

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Sometime in the coming weeks, the Supreme Court justices will be releasing their decision in Trump v. United States, ruling whether former President Donald J. Trump can face charges for his attempt to overturn the results of the 2020 presidential election, or if presidents are entitled to immunity from criminal charges simply because they are presidents. The justices are also considering a second case related to January 6.

These are two cases of enormous consequence for our democracy and justice system — yet there are two Supreme Court justices who have refused to recuse themselves despite the appearance of partiality.

One is Justice Samuel Alito. The Alitos flew flags that are symbols of the “Stop the Steal” movement in the front yards of their homes in Virginia and New Jersey. This apparent conflict of interest prompted outrage and calls for his recusal from the cases — which Alito has rejected.

And of course, Justice Clarence Thomas, whose wife Ginni Thomas was entangled in the “Stop the Steal” movement, also did not recuse. A toothless ethics code and a weak federal law that requires the Department of Justice (DOJ) to charge a sitting court justice with an ethics violation — something the DOJ is unlikely to do in this case — means that justices get to decide for themselves whether or not they should disqualify from proceedings.

The January 6 cases are yet another glaring reminder that we need major Supreme Court ethics reforms.

We do also want to note the news this week that Trump was convicted on all 34 charges in his hush money trial, becoming the first former president to be convicted of a felony. While the ultimate outcome remains to be seen, the fact of the trial’s completion goes to show — at least for now — that nobody is above the law, not even a former president.

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