Alito, Recusal, and Court Expansion

My new essay at The Hill explains why Supreme Court expansion is the only way to fix the justices’ broken recusal practice, building on Justice Alito's upside-down flag display and his explanation of non-recusal. Here is the gist:

The Supreme Court is broken. More justices can fix it.

by Steven Lubet, opinion contributor - 06/10/24 11:30 AM ET

Alito declared, no reasonable person would doubt his impartiality, unless “motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases.”

But Alito himself evidently realized that the flag created an appearance of impropriety. Otherwise, why persist in asking his wife to take it down over a period of days?

But no matter. Under Supreme Court practice, Alito himself served as the subject, key witness and exclusive judge of his own impartiality, secure from all further inquiry or review.

There is not much reason to expect the current justices to reform their solipsistic recusal practice, which they jointly reaffirmed just last year.

There are sincere arguments for and against court expansion, which I will not repeat here. 

One nonpartisan benefit, however, is that adding four justices in a relatively short time might enable the newcomers, with no commitment to the recusal status quo, to initiate a review of Supreme Court disqualification practices.

Perhaps that is too much to hope for. But Alito has demonstrated that the Supreme Court’s recusal process is broken beyond repair, and it may take a radical personnel change to address it.

You can read the full essay at The Hill.