FILE PHOTO: U.S. Supreme Court Chief Justice John Roberts waits for U.S. President Donald Trump's State of the Union address to a joint session of the U.S. Congress in the House Chamber of the U.S. Capitol in Washington, U.S. February 4, 2020. REUTERS/Leah Millis/POOL/File Photo
House Democrats sent a letter to Chief Justice John Roberts demanding that he answer questions about whether the Supreme Court will enforce their ethics rules on Alito.
House Judiciary Committee ranking member Jerry Nadler (D-NY) wrote to Roberts:
The Supreme Court Code of Conduct was adopted on November 13, 2023 “to set out
succinctly and gather in one place the ethics rules and principles that guide the conduct of the
Members of the Court.” Canon explicitly establishes that “A Justice should not…publicly
endorse or oppose a candidate for public office.” Additionally, Canon 3(B)(2) makes clear that
“A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality
might reasonably be questioned, that is, where an unbiased and reasonable person who is aware
of all relevant circumstances would doubt that the Justice could fairly discharge his or her
duties.”
Justice Alito appears to have violated both of these rules. By allowing the inverted flag
to be flown outside his home for multiple days, Justice Alito appeared to express support for a
candidate who is still running for office today. Moreover, reports indicate that the January 17,
2021 incident may be part of a broader pattern of similarly unethical conduct.
Any reasonable person, knowing that Justice Alito has repeatedly and openly expressed his support for the former president—including in the immediate aftermath of the attack on the Capitol—would
rightly question his ability to remain impartial in any case involving Donald Trump.
And yet, Justice Alito has continued to hear cases involving Donald Trump. The Supreme Court issued its per curiam decision in Trump v. Anderson on March 4, 2024, with no recusal from Justice Alito.
He likewise sat for oral argument in Trump v. United States, which will decide whether and to what extent presidents are immune from criminal prosecution. The decision in this case will have a sweeping impact—the former president faces 91 felony counts state and federal courts. And then there are the cases yet to come. When Donald Trump lost the 2020 presidential election, he filed over 60 cases in courts around the country.
As there is no reason to believe he will behave differently if he loses again in 2024, it is possible the Supreme Court will again decide the fate of our country. In the Statement of the Court published as a preamble to the Code of Conduct, you wrote, “The absence of a Code…has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.
Adopting a code of ethics was meant to remedy that misunderstanding—but 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.
Democrats appear to be doing everything that they can to call attention to the conservative Supreme Court’s refusal to hold themselves accountable. Alito has refused calls to recuse himself in the upcoming 1/6 cases.
House Democrats want answers, and while Roberts might be able to hold the Democrats off for now, but if Democrats win back the House majority, it is looking more and more likely that investigating the conduct of the Supreme Court conservative majority will be a priority.
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