A new book that’s supportive of Supreme Court Justice Samuel Alito provides an occasion to further scrutinize his refusal to recuse himself from a Jan. 6-related case.
The case is Fischer v. United States, a divided ruling from June 2024 that narrowed the scope of obstruction charges brought against some Jan. 6 defendants.
The 6-3 ruling was authored by Chief Justice John Roberts. It was joined by Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson, a Biden appointee, over dissent by Justice Amy Coney Barrett, a Trump appointee, that was joined by Justices Sonia Sotomayor and Elena Kagan. (Despite the president’s recent claim to the contrary, the Democratic appointees don’t always stick together.)
After the Fischer ruling came out, The New York Times reported in September 2024 that Roberts initially tasked Alito with writing the majority opinion, but that the chief justice took it over after the Times reported in May that an upside-down flag, a symbol of the “Stop the Steal” movement in the 2020 election that Donald Trump lost to Joe Biden, had flown outside the Alito home after the Jan. 6 attack on the Capitol. Despite the appearance issue, Alito refused to recuse himself from Jan. 6-related cases, attributing the flag-flying to his wife and insisting it didn’t warrant him stepping aside.
When he refused to recuse himself, I argued in May 2024 that his explanation was lacking and raised more questions than answers. For example, he said he asked his wife to take down the flag, but he didn’t explain why he did so if there was nothing wrong with it or if it raised no appearance of impropriety. Even if the flag-raising wasn’t his doing, the question was what message it sent to the broader public bound by his court’s rulings.
When the Times reported on the authorship switch in September 2024, I wrote that “if the change in authorship was motivated at all by the appearance of impropriety of Alito authoring a Jan. 6-related opinion while facing recusal calls, then that should have been a sign to Roberts and Alito that Alito had no business sitting on the case.
“That is, if potential concern with making Alito the face of a pro-Jan. 6 defendant ruling was enough to take away the opinion’s authorship from him, then that same concern should have led to Alito not participating in the case, whether he was the author of the opinion or not.”
Fast-forward almost two years later. Alito is the subject of retirement speculation ahead of the midterm elections. Multiple new books on him are out, with another one due from the justice himself in the fall.
A report from USA Today this week focuses on the flag episode as discussed in one of those new books, by conservative author Mollie Hemingway. Per USA Today, Hemingway wrote that Alito told Roberts that it would be better for the court if he didn’t write the opinion. “Roberts obliged him and took the opinion himself,” Hemingway wrote.
If that is in fact what happened, then it would seem to have made the case for Alito’s recusal even stronger.
That is, if the justice recognized that there was a public appearance concern with him authoring the opinion, then that same concern would have supported him stepping away from the case entirely. Either there was a problem sufficient to affect the integrity of the case or there wasn’t. His explanation for refusing to recuse suggested he was firmly in the “wasn’t” camp, yet his reported action in relinquishing authorship effectively admits that he could at least see the “was” argument. Still, the end result was a sort of soft recusal whose wisdom hasn’t become more apparent over time.
Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
The post New book sheds more light on Justice Alito’s refusal to recuse himself in a Jan. 6 case appeared first on MS NOW.
