I Researched Judicial Ethics Rules For Years. Here’s Why The Alito Recusal Calls Are Ridiculous


by Margot Cleveland

It would actually be unethical for Alito to recuse because the Supreme Court’s Code of Conduct says a justice ‘has an obligation to sit unless disqualified.’

Last week, the left and their paramours in the propaganda press paused momentarily from their near-continuous assault on Justice Clarence Thomas to set their sights on a new target: Justice Samuel Alito.

Justice Alito, headlines barked, must recuse from the pending Supreme Court cases involving Jan. 6 defendants and Trump’s appeal concerning presidential immunity because a “Stop the Steal” symbol was displayed at his house in January 2021. Democrats quickly joined the choir screeching for Alito to recuse. But to borrow a line from Senate Majority Leader Chuck Schumer, the idea that Alito violated any ethical rules, or that the Code of Conduct for the justices requires his recusal from those cases, is wrong six ways to Sunday.

The false flag of an ethical scandal was clear from The New York Times’ spin in breaking the story on Thursday under the headline: “At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display.” From the Old Gray Lady’s header, one would think the Alitos had displayed a banner brandishing the phrase outside their home.

But no, as the article soon acknowledged, it was an upside-down American flag seen flying outside the home where Justice Alito lives with his wife. And it was his wife who raised the flag — in protest of a neighbor displaying a profane yard sign, as we would soon learn.

The Times, though, quoted supposed ethics experts, including Amanda Frost, a law professor at the University of Virginia, to frame the hanging of an upside-down flag as a public declaration of “Stop the Steal.” This is “the equivalent of putting a ‘Stop the Steal’ sign in your yard,” Frost reportedly told The New York Times.

That’s quite the leap of logic — and one even the Times’ reporters refrained from making. (Frost did not respond to The Federalist’s request for comment). The Times instead left its readers to infer the upside-down flag professed a “Stop the Steal” sentiment by noting some of Trump’s supporters had inverted Old Glory in contesting the 2020 election results.

That inference, furthered by Frost’s declaration, however, represents a rewriting of history. While there may have been a few upside-down flags seen displayed during protests at the Capitol, calling it a symbol of “Stop the Steal” is a completely concocted narrative. Consider, for instance, that contemporaneous reporting by leftist outlets, such as CNN, professing to “decod[e] the extremists symbols and groups at the Capitol Hill insurrection” included no mention of protesters appropriating an upside-down flag as a universal symbol for “Stop the Steal” adherents.

The case against Justice Alito crumbles without the upside-down flag holding the professed political meaning his critics claim. But even accepting the false narrative that flying an upside-down flag is the “equivalent of putting a ‘Stop the Steal’ sign in your yard,” the charges of unethical conduct and the clamoring for recusal fare no better.

Code of Conduct

There are two distinct issues: First, whether Mrs. Alito’s raising of the flag represented an ethical violation for Justice Alito. Second, whether Mrs. Alito’s display of an upside-down flag requires Justice Alito to recuse. The answer to both questions is no.

On the first question, for simplicity’s sake, let’s assume Mrs. Alito placed a “Stop the Steal” sign in the front yard of the home she shares with her husband. Such a sign would qualify as political activity within the meaning of the various ethical codes governing judicial conduct.

The Code of Conduct governing Supreme Court justices, adopted Nov. 13, 2023, to formalize the court’s long-standing ethical traditions, provides in Canon 5 that “a justice should refrain from political activity.”

Canon 5 then specifies that “[a] Justice should not: (1) act as a leader or hold any office in a political organization; (2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or (3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.” The canon then ends with a catchall provision that “[a] Justice should not engage in other political activity.”

The posting of a sign, such as “Stop the Steal,” would clearly fit in the “should not engage in other political activity” prohibition. But it wasn’t Justice Alito who hung the upside-down flag we are hypothesizing was instead a “Stop the Steal” placard — it was Mrs. Alito. And the Code of Conduct does not govern a spouse’s actions.

You wouldn’t know that from The New York Times’ reporting, though.

“It might be his spouse or someone else living in his home, but he shouldn’t have it in his yard as his message to the world,” the Times quoted Frost as opining. Other unnamed “judicial experts,” according to The New York Times, “said in interviews that the flag was a clear violation of ethics rules…”

That is not at all what the ethical rules provide, however, as guidance surrounding the similarly restrictive codes of conduct for federal judges and federal law clerks confirm.

Canon 5 of the Code of Conduct for United States Judges is identical to that the Supreme Court recently adopted. There are some variations in the phrasing of Canon 5 in the ethical rules that govern judicial employees because some judicial employees are permitted to engage in limited nonpartisan political activities. Law clerks, however, remain bound by the same prohibitions on political conduct that apply to federal judges and Supreme Court justices: They are prohibited from engaging in “political activity.”

In the case of federal judges and law clerks, there is further guidance available beyond the relevant codes of conduct. A Committee on Codes of Conduct within the federal judicial branch is authorized to “render advisory opinions” about the code, which are published.

Take It from Me

During my time as a career law clerk for a federal appellate judge, my boss served on the Codes of Conduct Committee, and for some six years, my duties included assisting with research related to various inquiries. So I am well-versed in the minutia of the ethical rules and the committee’s guidance.

As noted, the committee published some of its responses as advisory opinions, while other times it provided only an unpublished opinion in the form of a letter to the inquiring judge or judicial employee. A synopsis of that private guidance, however, is also included in a compendium that’s accessible to all judges and their staff.

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Good response to a stupid idea the dems just hoped might work.
Never fear, dems don’t rest.
They’ll keep coming up with spaghetti to throw at the wall in hopes some of it will stick.

That ain’t spaghetti they are flinging.

 But it is an “ask,” not a “tell” or a “compel.”

Maybe this is the source of the confusion. When a leftist “asks” someone to do or not do something, they MEAN “compel”, as in simply by virtue of the fact that they don’t like your behavior, you should submit to their orders.

I can’t help but notice that in all the discussions the left engages in about judges and Justices recusing themselves, they never refer to Sotomayor, who had a distinct and measurable conflict of interest or the various leftist judges making decisions on conservative issues. While blatantly prejudiced, they are NEVER expected to recuse themselves and it is never considered wrong for them not to.

There is no doubt all this, including the ongoing assault on Justice Thomas, is nothing but the left’s attempt to increase the strength of their far left revisionist bloc of justices. The left has no respect for the Constitution. None.

The left loves to try and suppress opinion by applying their own definitions to what someone does. They have deemed the “OK” hand sign is a racist signal because they think it is; therefore anyone (not a liberal) that uses this sign, regardless of context, is a racist. The upside down flag is a long-recognized symbol of the nation in distress. Does anyone, regardless of political affiliation, deny that the nation is NOT in distress, and more so in 2021? No, this is nothing more than yet another weak-ass attempt by the left silence opposition and try to rig a Supreme Court decision in their favor.