Should Samuel Alito and Clarence Thomas Recuse Themselves from the Supreme Court’s Insurrection Cases?
“The Justice Department ought to do whatever it can to ensure there’s no appearance of bias among the justices,” BU legal scholar Jack Beerman says
Two cases arising from the January 6 insurrection currently before the US Supreme Court—including Donald Trump’s claim of sweeping presidential immunity—have led to calls for Justices Samuel Alito (left) and Clarence Thomas to recuse themselves. Photos by Erin Schaff and J. Scott Applewhite via AP
Should Samuel Alito and Clarence Thomas Recuse Themselves from the Supreme Court’s Insurrection Cases?
“The Justice Department ought to do whatever it can to ensure there’s no appearance of bias among the justices,” BU legal scholar Jack Beerman says
By June’s end, the Supreme Court is expected to decide not one but two cases stemming from the January 6, 2021, insurrection. Two justices whom critics call compromised will join in those rulings.
Chief Justice John Roberts recently dismissed calls for Samuel Alito’s recusal after revelations that flags outside Alito’s homes appeared to support Donald Trump’s lie about winning the 2020 election. One was an upside-down Stars and Stripes, carried by insurrectionists in their attack on the Capitol. The second was an “Appeal to Heaven” banner, a Revolutionary War symbol appropriated by insurrectionists and Christian theocrats.
Alito argued that his wife, not he, flew the flags, obviating any need to recuse himself. The controversy follows disclosures that Justice Clarence Thomas has been gifted luxury items and travel from rich conservatives for decades, and—germane to the January 6 cases—that his wife, Ginni Thomas, had urged the overturning of President Joe Biden’s election.
One insurrection-related case involves Donald Trump’s claim that he is immune from prosecution for seeking to invalidate the 2020 results, as he was acting, officially, as the president. The second questions the applicability of a federal obstruction statute under which hundreds of insurrectionists were prosecuted.
US Rep. Jamie Raskin (D-Md.), a former constitutional law teacher, has urged Attorney General Merrick Garland to petition the court to force the two justices’ recusals, on two grounds. First, a federal statute requires a justice to step aside in cases “in which his impartiality might reasonably be questioned.” Second, SCOTUS itself has struck down lower courts’ decisions when judges appeared potentially biased and thus infringed on defendants’ due process rights, Raskin wrote.
“I have a long history with [Raskin],” says Jack Beermann, the Philip S. Beck Professor of Law at the BU School of Law. “One of my father’s partners worked closely with his father” at a think tank that put the Pentagon Papers leaker in touch with the New York Times, which disclosed the secret papers about the Vietnam War. Beermann is also an expert on federal courts and administrative law, and BU Today asked him to parse the recusal debate.
This interview has been edited for clarity and brevity.
Q&A
With Jack Beerman
BU Today: Should either, or both, Alito and Thomas recuse from these cases?
Beerman: That’s a difficult question. Activity by their spouses is a lot of the reason for promoting them to recuse themselves. I was taking [Alito’s] statement of the facts as true. It’s difficult to judge fitness based on their spouses’ behavior. If you think Alito was involved in the flags, I certainly think he should recuse himself. Those flags represent a belief that the election was stolen, and that’s an issue relevant to the January 6 cases.
In earlier times, it would be hard to imagine Justice Thomas surviving on the Supreme Court with the financial conduct it’s alleged he engaged in, with people with interests before the court. In prior decades, the person would have been so disgraced that they would have left the court on their own, like Justice [Abe] Fortas did in the 1960s [for accepting money from a man under investigation for insider trading]. With Justice Thomas, you have vocal activity by his spouse, and I haven’t seen evidence he has said or done anything that indicates appearance of bias in those cases. He’s compromised on any case involving conservative causes because of his financial arrangements.
In earlier times, it would be hard to imagine Justice Thomas surviving on the Supreme Court with the financial conduct it’s alleged he engaged in.
BU Today: Should he be impeached?
He can’t be impeached, because there aren’t the votes to do it. And whether what he did is high crimes and misdemeanors, I’m not sure. I’m sort of talking myself into [thinking] that he probably ought to recuse from any cases involving high-profile [conservative] causes, and that would include the January 6 cases.
BU Today: Since neither justice is recusing himself, can they be forced to, as Raskin suggests?
I agree with Raskin. There are ample precedents to support the notion that a justice whose appearance of fairness can be reasonably questioned cannot sit on a case, and a vote of the Supreme Court could settle the matter. There’s a well-known case where a campaign donor funded the campaign of a state Supreme Court judge to get elected, and then that judge sat on a case involving that donor. The [US] Supreme Court held that that was a violation of due process.
BU Today: So if you were advising Attorney General Garland, would you say that for the legal merits and optics, he should petition the court to force them to recuse?
I would agree with that for those reasons and an additional reason. It’s important to restore the public’s faith in the Supreme Court. We’re in sort of an ongoing constitutional crisis that began before January 6 [2021]. If this proceeding doesn’t seem to be done in a fair and honest way, it could be seriously damaging. The Justice Department ought to do whatever it can to ensure there’s no appearance of bias among the justices.
BU Today: Assuming neither man recuses, how do you think the public might view the January 6 decisions when they’re handed down later this month, and the court’s reputation generally?
With our current public, whichever side loses is going to say that it was rigged. If they’re forced to recuse and then Trump and his allies lose, he [Trump] will say it was a rigged proceeding. If they don’t recuse and the case comes out against the government, people on the other side are going to think it was a biased process.
But in the long run, it would be healthy for the country if Alito and Thomas were not sitting on the cases. It sets a precedent that applies across the board. It’s not only conservatives that would have to recuse when they become identified with conservative causes; liberal justices would be discouraged from being overtly political outside the court, and that would be a good thing.
BU Today: Care to hazard a guess as to how the court will rule in the January 6 cases?
I would be very surprised if the court endorsed the broad immunity principle that Donald Trump is advocating. It would basically mean that there’s one person in the country that’s above the law. The court decided 40 years ago that the president couldn’t be sued for official conduct in a civil matter. I still think that was a mistake, because it placed them above the law. But I would be very surprised and upset about the idea that the president has complete immunity from prosecution for any crimes committed while president. It seems that’s completely inconsistent with everything we’ve ever learned about the role of law in our society. My prediction is that Trump’s going to lose that case.
[The obstruction statute case] is a trickly legal question. I think they have a plausible argument that that statute doesn’t apply. The central focus of that statute is preventing Congress from doing its investigatory work regarding legislation and monitoring the government—like, you can’t hide evidence that Congress wants. This [case] is obstructing Congress from performing its constitutional functions, and that’s trickier legally. There’s a doctrine that you construe criminal statutes narrowly, so that people have clear notice that what they’re doing is a crime.
On the other hand, there’s no question that everybody [at the insurrection] knew that what they were doing was illegal. They weren’t just deciding they wanted to have a picnic in the halls of Congress and didn’t realize it was against the law. These were people who were threatening to kill federal officials. They were trying to prevent Congress from fulfilling its constitutional function of tallying the votes for president.
So I think the prosecution also has good arguments that this is a proper use of this statute. There are good arguments on both sides. If you try to be too conciliatory, weakness just exposes you to more abuse. Appeasing Germany didn’t help the Czechs. This was something that we have never seen anything like before, and the full weight of the law ought to come down on it. If you can’t have a peaceful and orderly transition of administrations, we’ve lost the game.
Comments & Discussion
Boston University moderates comments to facilitate an informed, substantive, civil conversation. Abusive, profane, self-promotional, misleading, incoherent or off-topic comments will be rejected. Moderators are staffed during regular business hours (EST) and can only accept comments written in English. Statistics or facts must include a citation or a link to the citation.