I Researched Judicial Ethics Rules For Years. Here’s Why The Alito Recusal Calls Are Ridiculous
Last week, the left and their paramours in the propaganda press paused momentarily from their near-continuous assault on Justice Clarence Thomas to set their sights on a new target: Justice Samuel Alito.
Justice Alito, headlines barked, must recuse from the pending Supreme Court cases involving Jan. 6 defendants and Trump’s appeal concerning presidential immunity because a “Stop the Steal” symbol was displayed at his house in January 2021. Democrats quickly joined the choir screeching for Alito to recuse. But to borrow a line from Senate Majority Leader Chuck Schumer, the idea that Alito violated any ethical rules, or that the Code of Conduct for the justices requires his recusal from those cases, is wrong six ways to Sunday.
The false flag of an ethical scandal was clear from The New York Times’ spin in breaking the story on Thursday under the headline: “At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display.” From the Old Gray Lady’s header, one would think the Alitos had displayed a banner brandishing the phrase outside their home.
But no, as the article soon acknowledged, it was an upside-down American flag seen flying outside the home where Justice Alito lives with his wife. And it was his wife who raised the flag — in protest of a neighbor displaying a profane yard sign, as we would soon learn.
The Times, though, quoted supposed ethics experts, including Amanda Frost, a law professor at the University of Virginia, to frame the hanging of an upside-down flag as a public declaration of “Stop the Steal.” This is “the equivalent of putting a ‘Stop the Steal’ sign in your yard,” Frost reportedly told The New York Times.
That’s quite the leap of logic — and one even the Times’ reporters refrained from making. (Frost did not respond to The Federalist’s request for comment). The Times instead left its readers to infer the upside-down flag professed a “Stop the Steal” sentiment by noting some of Trump’s supporters had inverted Old Glory in contesting the 2020 election results.
That inference, furthered by Frost’s declaration, however, represents a rewriting of history. While there may have been a few upside-down flags seen displayed during protests at the Capitol, calling it a symbol of “Stop the Steal” is a completely concocted narrative. Consider, for instance, that contemporaneous reporting by leftist outlets, such as CNN, professing to “decod[e] the extremists symbols and groups at the Capitol Hill insurrection” included no mention of protesters appropriating an upside-down flag as a universal symbol for “Stop the Steal” adherents.
The case against Justice Alito crumbles without the upside-down flag holding the professed political meaning his critics claim. But even accepting the false narrative that flying an upside-down flag is the “equivalent of putting a ‘Stop the Steal’ sign in your yard,” the charges of unethical conduct and the clamoring for recusal fare no better.
Code of Conduct
There are two distinct issues: First, whether Mrs. Alito’s raising of the flag represented an ethical violation for Justice Alito. Second, whether Mrs. Alito’s display of an upside-down flag requires Justice Alito to recuse. The answer to both questions is no.
On the first question, for simplicity’s sake, let’s assume Mrs. Alito placed a “Stop the Steal” sign in the front yard of the home she shares with her husband. Such a sign would qualify as political activity within the meaning of the various ethical codes governing judicial conduct.
The Code of Conduct governing Supreme Court justices, adopted Nov. 13, 2023, to formalize the court’s long-standing ethical traditions, provides in Canon 5 that “a justice should refrain from political activity.”
Canon 5 then specifies that “[a] Justice should not: (1) act as a leader or hold any office in a political organization; (2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or (3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.” The canon then ends with a catchall provision that “[a] Justice should not engage in other political activity.”
The posting of a sign, such as “Stop the Steal,” would clearly fit in the “should not engage in other political activity” prohibition. But it wasn’t Justice Alito who hung the upside-down flag we are hypothesizing was instead a “Stop the Steal” placard — it was Mrs. Alito. And the Code of Conduct does not govern a spouse’s actions.
You wouldn’t know that from The New York Times’ reporting, though.
“It might be his spouse or someone else living in his home, but he shouldn’t have it in his yard as his message to the world,” the Times quoted Frost as opining. Other unnamed “judicial experts,” according to The New York Times, “said in interviews that the flag was a clear violation of ethics rules…”
That is not at all what the ethical rules provide, however, as guidance surrounding the similarly restrictive codes of conduct for federal judges and federal law clerks confirm.
Canon 5 of the Code of Conduct for United States Judges is identical to that the Supreme Court recently adopted. There are some variations in the phrasing of Canon 5 in the ethical rules that govern judicial employees because some judicial employees are permitted to engage in limited nonpartisan political activities. Law clerks, however, remain bound by the same prohibitions on political conduct that apply to federal judges and Supreme Court justices: They are prohibited from engaging in “political activity.”
In the case of federal judges and law clerks, there is further guidance available beyond the relevant codes of conduct. A Committee on Codes of Conduct within the federal judicial branch is authorized to “render advisory opinions” about the code, which are published.
Take It from Me
During my time as a career law clerk for a federal appellate judge, my boss served on the Codes of Conduct Committee, and for some six years, my duties included assisting with research related to various inquiries. So I am well-versed in the minutia of the ethical rules and the committee’s guidance.
As noted, the committee published some of its responses as advisory opinions, while other times it provided only an unpublished opinion in the form of a letter to the inquiring judge or judicial employee. A synopsis of that private guidance, however, is also included in a compendium that’s accessible to all judges and their staff.
The most on-point published advisory opinion from the committee is No. 53, titled “Political Involvement of a Judge’s Spouse.” That advisory opinion, after reiterating Canon 5’s prohibition on a judge engaging in political activity, states the obvious: “The Code does not govern the conduct of a judge’s spouse, however.”
“Therefore,” the committee noted, a judge’s responsibility is “to the extent possible, disassociate himself or herself from the spouse’s political involvement.”
That responsibility, however, does not include dictating a spouse’s behavior or unilaterally commandeering the marital home. Thus, for instance, the Codes of Conduct Committee advised a judge should not “join in the use of the marital home for political meetings or fund-raising events, and should disassociate himself or herself from any such gathering,” but did not suggest that the spouse could not use their home for political events.
The Times’ Thursday hit piece ignored that advisory opinion which made clear the Code of Conduct does not control Mrs. Alito’s behavior — and neither does Justice Alito. And as Advisory Opinion 53 recommended, Justice Alito “disassociated himself” from the inverted flag, explaining he had nothing to do with its flying.
The Times instead sought to disparage Justice Alito by including several clips of guidance provided to judicial employees regarding engaging in partisan activities. “Displaying signs or bumper stickers is not permitted, according to the court’s internal rule book and a 2022 memo reiterating the ban on political activity,” the article explained above these graphics:
Advisory Opinion 92, which discusses political activities for judicial employees, confirms these prohibitions, stating that covered employees should not “publicly display[] a campaign picture, sign, sticker, badge, or button for a partisan political candidate or organization.” But again, that prohibition does not apply to spouses.
A training manual for federal law clerks reiterates that point, stressing that a clerk’s “spouse and children may engage in political activities; however, if they do, you have an obligation to disassociate yourself from their involvement.” The training manual then provides as an example a clerk whose “domestic partner runs the election campaign for a local city council person and plans to host a strategy meeting at their house.” The training material recommends the clerk “ask his partner not to post a campaign sign in their front yard.”
But it is an “ask,” not a “tell” or a “compel.” As the compendium summary of unpublished opinions referenced in the training manual confirms, a law clerk (or a judge or justice) does not violate any ethical rules because his or her spouse opts to instead exercise his or her own political voice.
An Attempt to Force Recusal
The Times’ effort to smear Justice Alito as unethical based on the flag incident cannot withstand scrutiny. But that wasn’t really the end goal. The coordinated hit piece sought to force his recusal on two Trump-related cases.
The first case concerns charges brought against Jan. 6 defendants and not the former president. But the issue in that case concerns the breadth of the federal obstruction of an official proceeding statute, and both Jan. 6 defendants and Trump were charged under that section of the criminal code. Thus, if the high court rules in favor of the defendants, giving the statute a narrow reading — as it should — such a holding could doom two of the special counsel’s charges against Trump, since those counts charged violations of the same law. The second case from which the Times and its ilk suggest Alito must recuse concerns Trump’s appeal to the Supreme Court over the question of presidential immunity.
The calls for Alito to recuse from these cases have no basis in sanity.
Canon 3 of the Supreme Court’s Code of Conduct provides 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.”
Those screaming for Justice Alito to recuse are far from unbiased — and even further from “reasonable.” And an unbiased and reasonable person, knowing “all relevant circumstances,” would have no reason to doubt that Justice Alito could fairly discharge his duties.
Knowledge of “all relevant circumstances” is key because the legacy media’s spin and Democrats’ talking points focus not on reality, but on the false narrative they’ve been peddling.
The “relevant circumstances” are that Mrs. Alito — not Justice Alito — briefly flew an American flag upside down, not as a symbol of “Stop the Steal,” but “in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
As Justice Alito explained in an interview with Fox News’ Shannon Bream, Mrs. Alito had complained to a neighbor about his posting of a “F-ck Trump” sign within 50 feet of where children waited for a school bus. In response, “the neighbor put up a sign personally addressing Mrs. Alito and blaming her for the Jan. 6th attacks.” Later, a male at the home reportedly verbally attacked Mrs. Alito, with vulgar language, “including the c-word.” “Following that exchange,” Bream reported, “Mrs. Alito was distraught and hung the flag upside down ‘for a short time.’”
Nothing in these circumstances creates even the remote appearance that Justice Alito might hold a bias for or against the parties in the pending cases. To argue the contrary, one would have to believe that a three-year-old dispute between a neighbor and Alito’s wife rendered the justice unable to “fairly discharge his duties” in litigation involving statutory interpretation in appeals involving unrelated parties.
It’s clear from the hundreds of opinions from the Judicial Codes of Conduct Committee over the years — some published as advisory opinions, some unpublished opinions summarized in the compendium — that there is no basis to suggest Justice Alito should recuse. A majority of those opinions addressed Canon 2’s mandate that judges “avoid impropriety and the appearance of impropriety” and Canon 3C’s requirement that a judge “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned…” And none would recommend a federal judge recuse in a similar circumstance to avoid the appearance of impropriety.
On the contrary, if you studied the wealth of guidance provided over the years — as I have — you would instead conclude there is no reasonable appearance of impropriety and no need for recusal.
The Codes of Conduct Committee’s guidance is inapplicable to Supreme Court justices and, in fact, merely advisory to lower-court judges and judicial employees. Yet that the guidance confirms there is no reasonable appearance of impropriety and no need for recusal highlights the ridiculous nature of the attacks on Justice Alito: The Supreme Court’s Code of Conduct adopts a more stringent view on the need for recusal because of “the effect on the Court’s processes and the administration of justice in the event that one or more Members must withdraw from a case.”
In fact, it would be unethical for Justice Alito to recuse because the Supreme Court’s Code of Conduct expressly provides that a justice “has an obligation to sit unless disqualified.”
Yet Democrat activists and their friends in the propaganda press continue to push for recusal by misrepresenting the facts and ethical rules. The Times again serves as the standard-bearer for pushing this fake controversy, as exemplified by its follow-up article headlined, “What Do Judicial Rules Say About Alito and a ‘Stop the Steal’ Symbol?” The subhead is no better: “Judicial experts say an upside-down flag at the justice’s home raises thorny questions about potential ethics violations and what circumstances require recusal from cases.”
But just as there is no “Stop the Steal” symbol, there is no “thorny” question in play — at least if you are reasonable and unbiased.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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