Justice Alito is right to not recuse over flag flap

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The Supreme Court is releasing various opinions this month, as is normal at the conclusion of its term each June. What isn’t normal are the ongoing politically motivated attacks on the court — the latest concerning a spat over flags.

Observing this recent brouhaha brought to mind a saying directed at lawyers: “If you have the facts on your side, pound the facts; if you have the law on your side, pound the law; if you have neither the facts nor the law, pound the table.”

Since Justice Samuel Alito authored the majority opinion in Dobbs v. Jackson Women’s Health Center overturning Roe v. Wade, he has been subject to intense scrutiny. This level of attention to a justice based on his or her opinions (much less outdoor home decor) is not common, but is not entirely unprecedented.

In the 1960s, a far-right organization called the John Birch Society launched a public campaign to impeach Chief Justice Earl Warren because of opinions he had written about communism and civil rights. That campaign generated some billboards and bumper stickers but had no purchase with responsible groups across the political spectrum; Warren served until retirement, and the episode did not affect the court.

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Though misguided, the Warren campaign actually had a constitutional premise. Michael Stokes Paulsen has summarized Alexander Hamilton’s understanding: “Congress could impeach and remove federal judges if they repeatedly and deliberately abused their power to interpret the Constitution — a drastic measure, reserved for drastic abuses.”

Alito’s detractors are hoping they will have more impact. Their approach is different from the earlier campaign in two important ways.

First, unlike the isolated Warren critics, they have strong media and political support for their efforts. The Hill, for instance, has published multiple opeds premised on the idea that a justice’s family member’s decision to fly flags that might (or might not) be symbolic of something controversial creates a crisis for the court. Some commentators have made remarkable turnarounds in their attitudes about when recusal is necessary. Democratic politicians have also weighed in, encouraging Alito to recuse himself from some cases the court is considering.

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Another way the current campaign is different from the Warren episode is that it is entirely untethered from any — even tenuous or mistaken — constitutional rationale. 

The court’s role is not to deliver on the policy goals or political aims of other branches of government. The justices are charged with interpreting and applying the Constitution and other laws as written. They do this by considering cases, deliberating, and issuing written opinions. Knowing whether they are doing their jobs doesn’t require an analysis of a family member’s attitudes or interests. Their work product is open to anyone.

Some will read those opinions and believe their interpretations are correct. Others will conclude that their interpretations are flawed and try to convince the majority of the justices of their own interpretations in future cases. That is the constitutional system.

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In responding to the recusal claim from some members of Congress, Alito stated: “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 [the flag displays do] not meet the applicable standard for recusal. I am therefore duty-bound to reject your recusal.” He is right. The justices must carry out their constitutional duties. Other citizens, and particularly other government officials, should allow them to do that without trying to influence votes through harassment, intimidation or ill-conceived efforts to change the votes through pressure to recuse.

William C. Duncan, J.D., is the constitutional law and religious freedom fellow for Sutherland Institute, an independent nonprofit public policy think tank in Salt Lake City.

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