With less than six months to go before America chooses its next president, the US supreme court finds itself in a profoundly unenviable position: not only has it been drawn into the thick of a volatile election, but swirling ethical scandals have cast doubt on its impartiality.
The US supreme court’s discomfort worsened dramatically on Thursday night when the New York Times published a photograph of an upside-down American flag being flown outside the Alexandria, Virginia, home of the hard-right justice Samuel Alito. The photo was taken on 17 January 2021, days after the insurrection at the US Capitol and days before Joe Biden’s inauguration.
At the time, upside-down flags were proliferating as a symbol of Donald Trump’s false claim that the 2020 presidential election had been stolen from him. That one of the nine most powerful justices in the country – who has potential to wield enormous influence over the 2024 election – had a “stop the steal” icon flapping on his front lawn was, to put it mildly, incendiary.
“There’s little doubt that the supreme court will play a large role in the 2024 election, and you have to now ask whether the flag incident will forever cloud the public’s view of its impartiality in those cases,” said Gabe Roth, executive director of Fix the Court, a non-partisan group advocating reform.
The supreme court memorably handed the US presidency to George W Bush in its 2000 ruling Bush v Gore. Though no individual case so far this year has risen to that level, there is no doubt that the justices are deeply mired in the 2024 cycle.
They have already decided that Trump cannot be ejected from the ballot for his role in the January 6 attack under the 14th amendment block on insurrectionists holding office. By the end of their term in June they are also set to rule on two other critical cases that go to the heart of Trump’s fitness to govern, and hence the presidential outcome.
The first asks whether Trump has presidential immunity in the federal criminal prosecution over his “stop the steal” antics in 2020/21. The other, which could also determine whether he can be tried for his attempt to overturn the election, looks at whether January 6 rioters can be charged under the obstruction statute.
All of that before we even get to the election itself, and the possibility of renewed trouble in November should there be close and contested counts in key battleground states. As one of the justices expressly warned in the 14th amendment case, further insurrections were not impossible.
“I don’t know how much we can infer from the fact that we haven’t seen anything like this before [that] we’re not going to see something in the future,” the justice said. His identity? Samuel Alito.
Until last Thursday, there had been plenty of talk about whether the supreme court was ethically equipped to tackle fundamental questions that could drastically change the course of November’s election. But most of it concerned Clarence Thomas.
His wife, Ginni, is a hard-right activist who was an active participant in efforts to stop the certification of Biden’s victory. Yet Thomas has consistently refused to recuse himself from supreme court cases relating to January 6, even ones which directly invoked Ginni.
After Thursday, we now have not one but two of the conservative justices whose spouses have engaged in apparent pro-Trump political activity. In his self-defense, Alito told the New York Times: “I had no involvement whatsoever in the flying of the flag,” putting it all down to a spat his wife, Martha-Ann, was having with neighbors who had defaced a Trump lawn sign.
Some law scholars were prepared to give Alito the benefit of the doubt. Stephen Gillers, emeritus professor at New York University law school, said that he did not believe Alito knew the upside-down flag was flying, or that it was a coded message for “stop the steal”.
“While Alito’s explanation for how it did happen is hard to believe, it is more credible than the view that he knowingly chose to fly the flag upside down knowing its import.”
But there is no doubt that the optics of the flag are atrocious. As Gillers also noted: “It’s obviously so damaging to the court, whose reputation is already suffering.”
The highest court has taken such a battering over its ethical standards – mostly relating to private jets, vacations and other material benefits rather than political activities – that it has been forced to adopt its first-ever ethical code. It says that a justice must recuse him or herself from a case where they have a “personal bias or prejudice”.
That might involve their spouse being party to the proceeding or having an interest that could be substantially affected by the outcome of the proceeding, the code states.
Given what we now know about the behavior and convictions of both Ginni and Martha-Ann, it is arguable that there is at least a conversation to be had about whether Justices Thomas and Alito should disqualify themselves from any case relating to January 6. But there’s the rub.
Under the new code, the supreme court polices itself on all ethical matters. Not only that – each individual justice polices him or herself, in effect sitting in judgment on themselves with even their eight colleagues having no say.
Unsurprisingly, in the six months that the new code has been in existence very few justices have recused themselves. Where they have, only the liberal justices Elena Kagan and Ketanji Brown Jackson have publicly explained their decisions.
It all points towards more storms ahead. It is now all but inevitable there will be calls for both Alito and Thomas to recuse themselves as election year proceeds.
“The fact that two justices live in households with people who believe the 2020 election was stolen is astounding and disturbing,” Roth said. “Will they heed the calls for recusal? Probably not. Is there any way to force them? No.”