Alito And Thomas Should Be Forced To Recuse Themselves

It has become obvious that Justices Alito and Thomas are biased in the cases concerning Donald Trump, but both are refusing to recuse themselves. Maybe it is time to force those recusals. Here is part of what Rep. Jamie Raskin has to say about that in The New York Times:

Many people have gloomily accepted the conventional wisdom that because there is no binding Supreme Court ethics code, there is no way to force Associate Justices Samuel Alito and Clarence Thomas to recuse themselves from the Jan. 6 cases that are before the court.

Justices Alito and Thomas are probably making the same assumption.

But all of them are wrong. . . .

Justices Alito and Thomas face a groundswell of appeals beseeching them not to participate in Trump v. United States, the case that will decide whether Mr. Trump enjoys absolute immunity from criminal prosecution, and Fischer v. United States, which will decide whether Jan. 6 insurrectionists — and Mr. Trump — can be charged under a statute that criminalizes “corruptly” obstructing an official proceeding.

Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection. Each justice decides for him- or herself whether he or she can be impartial. . . .

The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.

The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455. . . .

The constitutional and statutory standards apply to Supreme Court justices. The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court.

This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.

When the arguments are properly before the court, Chief Justice John Roberts and Associate Justices Amy Coney Barrett, Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor will have both a constitutional obligation and a statutory obligation to enforce recusal standards.

Indeed, there is even a compelling argument based on case law that Chief Justice Roberts and the other, unaffected justices should raise the matter of recusal on their own (or sua sponte). Numerous circuit courts have agreed with the Eighth Circuit that this is the right course of action when members of an appellate court are aware of “overt acts” of a judge reflecting personal bias. Cases like this stand for the idea that appellate jurists who see something should say something instead of placing all the burden on parties in a case who would have to risk angering a judge by bringing up the awkward matter of potential bias and favoritism on the bench.

But even if no member of the court raises the issue of recusal, the urgent need to deal with it persists. Once it is raised, the court would almost surely have to find that the due process clause and Section 455 compel Justices Alito and Thomas to recuse themselves. To arrive at that substantive conclusion, the justices need only read their court’s own recusal decisions. . . .

The federal statute on disqualification, Section 455(b), also makes recusal analysis directly applicable to bias imputed to a spouse’s interest in the case. Ms. Thomas and Mrs. Alito (who, according to Justice Alito, is the one who put up the inverted flag outside their home) meet this standard. A judge must recuse him- or herself when a spouse “is known by the judge to have an interest in a case that could be substantially affected by the outcome of the proceeding.”