Not content with blaming his wife for one instance of dubious use of a flag associated with an insurrection at an Alito residence, the resourceful Justice has blamed her for another at a different Alito property. That would be the second time he's thrown her under the bus in response to requests that he recuse himself from cases involving this incident, but not content with this misdirection he's done it yet again in his curious written response to those requests, solemnly (and unsurprisingly) declaring he need not--and indeed cannot--do so.
The notion of a judge having a duty not to recuse is one I find quite odd. The duties a judge would have in response to a request would, I think, be to the parties involved in the case. Justice Alito seems to think he has a duty apart from them--a duty to decide, although he's accused of bias or at least he appearance of it; indeed, perhaps because he has been so accused, and has decided himself (as he's allowed to do under the Supreme Court's unenforceable "code of ethics") that he cannot be accused of bias and is (and presumably--hopefully?-will be) impartial.
The truisms he employs in explaining he won't recuse himself are so off point it's difficult to believe he resorts to them. Nobody has claimed his wife isn't a person, or an individual. No one doubts she has her own opinions. The fact she has flown other flags is neither relevant nor interesting. The concept of joint ownership of property is well known. No one thinks she has no right to fly a flag. No one thinks she has no First Amendment rights. No one doubts she was called bad things by others, nor is it maintained that neighbors did not exercise their own right to place signage on their property she found objectionable.
We may take Alito at his word that he wasn't involved in raising/flying the flags.
None of this is pertinent, and one would like to think that a Justice of the Supreme Court has the wits needed to know that's the case. None of this is pertinent because the issue is whether, even under the toothless code which "applies," his impartiality may reasonably questioned. Impartiality may reasonably be questioned regardless of whether it is or can be established.
Everyday people governed by codes of ethics must grapple with the question whether what they do creates the appearance of impropriety. There's nothing unusual about this. In most cases, honorable people feel, rightly, that when called upon to decide or participate in a decision involving their spouses professed beliefs and claims and whether they are valid or invalid, an appearance of impropriety exists. This is because a spousal relationship is normally considered an unusually close one, in which spouses profoundly influence one another and share common interests and concerns.
Perhaps Justice Alito and his wife don't have such a relationship. Perhaps he disdains her views, or pays no attention to what she thinks or does. Even if that was the case, though, it would be reasonable for someone to think that they're a normal married couple, that they respect one another and know what each other do, at least in most cases. Certainly, one would think, when it comes to flying flags over the home in which they live.
Assuming, then, what most would assume in the case of a marriage, i.e. that each partner will love, honor and respect their spouse, it's not at all unreasonable to expect that what one spouse publically declaims on matters in which the other is involved in deciding will influence the making of the decision, or will at least lead reasonable people to believe it will do so. Pedantic recitation of each partner's individuality and legal rights isn't persuasive in such circumstances. In fact, it seems disingenuous, and even dishonorable.
Supreme Court Justices seem to be doing a kind of ethical limbo dance. How low can they go?
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