CREW’s call for Alito to step down highlights his recusal failures in Trump cases

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Citizens for Responsibility and Ethics in Washington has called on Supreme Court Justice Samuel Alito to resign, citing his failure to recuse himself from cases related to the 2020 election, including the Donald Trump immunity ruling. The watchdog group’s letter won’t sway the justice, but it highlights the problem of Alito’s having participated in these crucial disputes. The letter, dated Tuesday, notes that Alito declined to recuse after it emerged that flags carried at the Capitol on Jan. 6, 2021, also flew outside of his homes: These flags flying at your homes — a phenomenon of which you were well aware and which was publicly known before the Court decided major cases related to the effort to overturn the 2020 election and the January 6th insurrection — would lead any reasonable person to question your impartiality as to those cases. CREW cited three cases: • Trump v. United States, the immunity ruling. • Fischer v. United States, which narrowed obstruction charges for Jan. 6 defendants. • Trump v. Anderson, the ruling that kept Trump on the ballot despite the 14th Amendment’s insurrectionist ban. Alito was in the majority for all three — as was Justice Clarence Thomas, who, unlike Alito, never attempted to explain his nonrecusals, despite his wife’s connection to efforts to overturn the results of the 2020 presidential election. We can safely assume that Alito won’t be resigning — at least not because of this letter. The GOP-appointed justice is in his mid-70s and would probably want to retire under a Republican administration so Republicans could confirm his successor. So when Alito (and Thomas, also in his mid-70s) voluntarily leaves the court may depend partly on whether the litigant he’s been helping returns to the White House in November. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.