AYESHA RASCOE, HOST:
Supreme Court Associate Justice Samuel Alito last week rejected calls to recuse himself from cases related to the 2020 presidential election. That's after the New York Times reported that symbols associated with Donald Trump's supporters had been on display at different times outside his family's homes in the recent past - an upside-down American flag outside his home in Virginia and a Revolutionary War-era pine tree flag outside his family's beach house in New Jersey. Democratic lawmakers said that the flags created reasonable doubt as to Alito's impartiality in Trump-related cases. There have been many other cases when Supreme Court justices have recused themselves. To find out how this instance compares to those, we turn to Professor Louis Virelli of the Stetson University College of Law in Florida. He's the author of "Disqualifying The High Court: Supreme Court Recusal And The Constitution." Welcome to the program.
LOUIS VIRELLI: Thank you for having me.
RASCOE: So, first off, how often do Supreme Court justices recuse themselves, and what do they usually recuse themselves for?
VIRELLI: So recusal is a law - is a time-honored and relatively common practice, and that often surprises people. Typically, the standards for recusal, earliest recusals that are done voluntarily by the justices, are financial. So, for example, if a justice owns stock in a company or an entity that's appearing before the court. Familial - so if a family member is a lawyer, a witness, or a party in a case before them, or was a judge below. And often past government service is a grounds for recusal. So for example, Justice Elena Kagan was solicitor general of the United States before she took the bench. She recused herself from all cases in which she directly participated as solicitor general, and that's very common.
RASCOE: OK. And, well, this question before Justice Alito seems different. Have there been other instances that you know of when a recusal has come because a justice is seen as holding an ideological bias related to a case?
VIRELLI: The most recent example and maybe the best example would be Justice Katanji Brown Jackson recusing herself from the affirmative action cases involving Harvard. She was a board member at Harvard. She was no longer on the board, of course, when she was on the court. And she voluntarily recused herself largely because of the appearance. So typically recusal is a balance of two things in every situation. One, is my participation fair to the people in the case? Is there an ethical problem for the litigants in the case? And two, is there a problem with my participation for the integrity of the court in general? There's a third consideration of the Supreme Court, the recusal of a justice, particularly a justice from a relatively clear end of the ideological spectrum, whether that be liberal or conservative, could affect the way a case is deliberated and decided by the remaining justices.
RASCOE: So, in this case, Justice Alito basically said that his wife has a right to free expression and that a reasonable person not motivated by political or ideological considerations would still think that Justice Alito could fairly discharge his duties. Do you agree with that sentiment?
VIRELLI: I do not. And I want to say as I do that, that I'm also on the record defending Justice Clarence Thomas' right to participate in 2020 election cases despite his wife's involvement in trying to change the outcome. I said at the time that as long as Ginni Thomas' activities weren't part of the record in that case, and she was not a witness in that case, that the fact that a spouse engaged in activity outside the home on their own should not necessarily taint the justice's ability to participate. And I might have been wrong about that, but I took that position then. I think this is different. And I think this is different because I think it strains credulity to say, in our home that we both live in, a purely expressive enterprise - right? Flying a flag is communicative - that associates oneself with a movement that is directly relevant to the cases being decided by the Court - it strains credulity to say Mrs. Alito is somehow acting independently, and the justice either didn't know about the flag that's flying outside both of his homes or had no accountability for that.
RASCOE: You know, when it comes to the Supreme Court under the current ethics code adopted just last year, it is up to each justice to decide for themselves if they should recuse themselves. Can you talk more about what can be done to increase accountability or what you believe should be done to increase accountability?
VIRELLI: Sure. So one, I think the code of ethics is useful from the court because it is true. So now we finally understand or at least have a commitment from the court as to how they actually do this, right? They do, in fact, consider significantly more factors than lower court judges, and they do consider themselves having a duty to sit. The court needs to police itself. And I don't mean that the court needs to necessarily have hearings over every recusal motion and judge one another's decisions. But I think the justices have to take seriously among themselves, and they can do that privately, about when one of their conduct threatens the integrity of the court. And I understand why that's uncomfortable for the justices.
But I should hope that nine professionals who are committed to working together for life could reach some consensus on how to protect the integrity of their own institution, one of the three branches of government. In terms of command and control options, there are very few. Expanding the size of the court might help. Because the more justices there are, the less an individual recusal will impact the outcome potentially. Term limits, insofar as it could change the size of the court and allow for more turnover, might also create a little bit more humility and less entrenchment. But I think it's largely self-policing by the court with the notion that the legitimacy of the institution depends on it, and that's from Alexander Hamilton to Justice Sandra Day O'Connor, to Chief Justice John Roberts, articulating that position over and over.
RASCOE: That's Louis Virelli, professor at the Stetson University College of Law in Florida. Thank you so much for joining us.
VIRELLI: Thank you for having me. Transcript provided by NPR, Copyright NPR.
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