'Subpoena his wife': Expert nails Alito for passing the buck in possible ethics crime

U.S. Supreme Court Justice Samuel Alito opened the door to Congress issuing a subpoena to his wife after he implicated her in the display of an upside-down American flag that may have violated his statutory duties, a New York Times writer said Tuesday.

The conservative justice told reporters that his wife displayed the symbol of Donald Trump's "stop the steal" movement in the days between the Jan. 6 insurrection and president Joe Biden's election, when the court was considering the former president's election challenges, and a member of the New York Times editorial board called that out as a potential crime.

"In a statement to The Times, Justice Alito placed the blame for the hoisting of the flag on his wife, Martha-Ann Alito, in response to a dispute with some neighbors," wrote editorial board member Jesse Wegman, who specializes in the Supreme Court, law and politics. "He said nothing about any attempt to remove it, nor did he apologize for the glaring ethical violation. To the contrary, he has failed to recuse himself from any of the several Jan. 6-related cases currently before the court, including Mr. Trump’s claim that he is absolutely immune from prosecution for his role in the Capitol assault."

Alito was obligated to recuse himself from Trump's election challenges and likely his pending claim to broad immunity for inciting the insurrection under the federal recusal law, which Wegman said was clear about his responsibility: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Justice Clarence Thomas might be even more conflicted in Jan. 6 cases, because his wife Ginni Thomas actively participated in the wide-ranging effort to keep Trump in power despite losing the election, and Wegman said both justices should be investigated by Congress to determine whether they broke federal law by sitting on cases involving the former president and his attempt to subvert the 2020 election.

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"In short, Justices Alito and Thomas appear to be breaking federal law, tanking what remains of the court’s legitimacy in the process," Wegman said. "The challenge is whether anyone is willing to do anything about it."

The Judicial Conference chaired by chief justice John Roberts is statutorily obligated under Ethics in Government Act to refer to the Justice Department any case where there's reason to believe a judge willfully broke the law, although attorney general Merrick Garland doesn't have to wait for a referral, and Senate Judiciary Committee chairman Dick Durbin could convene hearings.

"So what is Congress so afraid of?" Wegman wrote. "Committees can and should hold hearings and subpoena witnesses to answer questions before the nation. They can subpoena Justice Alito himself. If he declines to show, subpoena his wife. He implicated her, after all, and she certainly has no separation-of-powers claim."

"Then subpoena Chief Justice Roberts, who declined to testify last year when he was asked politely," Wegman added. "If he still doesn’t show up, Congress should remember it has the power of the purse and can reduce the court’s nonsecurity budget."

Although those two justices may be in their mid-70s, Wegman said Congress must take action against them to warn a younger generation of even more extreme ideologues that the Supreme Court remains accountable to its co-equal branches and to help restore credibility to the court.

"Young Americans who are voting for the first time this year were born after Bush v. Gore; some were not even in high school when Senator Mitch McConnell stole a Supreme Court seat from Barack Obama," Wegman wrote. "For all they know, this is how the court has always been, and always will be."

"That’s why now is the time to show future generations that the nation needs a court that can be trusted to be fair, a court whose justices have the capacity for shame," he added. "The Supreme Court is an institution that we depend on as much as it depends on us."