Bonus 82: Why Recusal is (Usually) a Distraction

Debating whether specific justices should recuse in specific cases tends to crowd out more important conversations about how their conduct affects public faith in the Court more generally

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

Even with the additional reporting over the past week, including Jodi Kantor’s follow-up on the dispute between Justice Alito and his neighbors and the remarkable concession by the Washington Post that it had this story in January 2021 and … didn’t run it, I really wasn’t planning to devote a second-straight bonus issue to the latest vexillological developments (although I’ll take any excuse to use that word).

But yesterday, Justice Alito sent a pair of identical three-page letters to congressional Democrats rejecting their requests that he recuse from participating in the two pending January 6-related cases at the Supreme Court, or others. The letter is an … interesting read, not just for how the narrative about what actually happened continues to evolve, but because of how Justice Alito wraps himself in the new Supreme Court Code of Conduct’s “obligation” that justices sit on cases unless they must recuse—even though he and the other Republican appointees have thus far appeared to treat that Code, at least publicly, as if it imposed no mandate whatsoever.

Rather than litigate Justice Alito’s analysis of the relevant recusal standards, though, or debate whether the Code is “binding,” I wanted to use today’s bonus issue to make a different point—one that might surprise some readers, and maybe even alienate others: I think fighting over whether specific justices should recuse/should have recused in specific cases tends to be little more than an unhelpful distraction, and I think that the Alito-flag episode is a perfect illustration of why.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.