Justice Alito Did Not Cite the Applicable Law on Disqualification

28 U.S.C. sec. 455 applies to Supreme Court Justices and Mrs. Alito Should Testify

Justice Alito, in his letter to the Senators, said he does not have to recuse from the Trump Immunity case and the January 6 case under the Ethics Rules adopted by the Justices. But he neglected to discuss whether he has an obligation to recuse by disqualification under 28 U.S.C. sec. 455 which applies to Supreme Court Justices and all other judges and magistrates in the federal judiciary. Section 455 is more extensive than the Code of Ethics adopted by the Justices, and under Section 455(b)4) and (b)(5), the actions of Justice Alito’s spouse requires his disqualification, particularly when combined with his obligation to recuse under Section 455(a).

Section 455 states in relevant part:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances: …

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

Sections 455(b)(4) and b(5) apply to not only the Justice but also the Justice’s spouse. So if Alito knows his spouse has taken public positions which are involved in cases pending before the Court he must recuse or he could be disqualified by the other Justices applying Section 455(b)(4) and (b)(5).

Section 455 requires that Mrs. Alito provide information to the other Justices and the Congress on her intent and statement she was publicly conveying by flying the United States flag upside down and in flying the Appeal to Heaven flag. Both the upside down U.S. flag and the Appeal to Heaven flag were prominently carried by many January 6 insurrectionists. Was Mrs. Alito supporting and agreeing with the insurrectionists or was she conveying a belief in necessary revolution if conditions warrant, in her view.

If the Court decides the Trump immunity case and the January 6 case inconsistent with her views and public statement in flying the flags does it mean she has an interest that could be affected by the outcome of either or both cases?

If Mrs. Alito has strong views on the issues and could be included under Sections 455(b)(4) and (b)(5), then Justice Alito has an obligation to recuse under those sections but also under Section 455(a) as his wife’s public statements create an appearance of impropriety if Justice Alito did not recuse.

The Court’s other Justices could vote under Section 455 to disqualify Justice Alito if he does not recuse.

Justice Alito has an obligation under Section 455 to provide the other Justices and the Congress with his wife’s views and intent in publicly flying the flags. Ideally, Mrs. Alito should submit a statement to the Court and the Congress on her views being expressed by flying those two flags in a public manner for all to see.