Chief Justice Rejects Senate Dems’ Request for Alito Meeting, Defends Judicial Independence on Recusal

Chief Justice John Roberts will not meet with Democratic senators, he said in a letter Thursday rejecting the lawmakers’ invitation to discuss a controversy over flags flown outside Justice Samuel Alito’s home, which critics have recently taken to identifying as symbols of the “stop the steal” movement.

“I must respectfully decline your request for a meeting,” Roberts wrote to Senate Judiciary Chairman Dick Durbin (D., Ill.) and Senator Sheldon Whitehouse (D.,R.I.). The pair had written to Roberts one week ago to request a meeting and to ask that the chief justice pressure Alito to recuse himself from any cases before the court that are connected to the January 6 Capitol riot or former president Donald Trump’s efforts to overturn the 2020 election.

In his response, Roberts writes that “apart from ceremonial events, only on rare occasions in our Nation’s history has a sitting Chief Justice met with legislators, even in a public setting (such as a Committee hearing) with members of both major political parties present.”

“Separation of powers concerns and the importance of preserving judicial independence counsel against such appearances. Moreover, the format proposed—a meeting with leaders of only one party who have expressed an interest in matters currently pending before the Court — simply underscores that participating in such a meeting would be inadvisable,” he said.

One day earlier, Alito wrote members of Congress to reject their demands that he recuse himself from cases before the court involving former president Donald Trump and the January 6 Capitol riot. He said the flags — an inverted American flag and an “Appeal to Heaven” flag that were flown by his wife — do not require his recusal.

Alito has said that his wife displayed the inverted American flag outside their home in Virginia amid a dispute with neighbors and that she was unaware of the “Appeal to Heaven” flag’s significance among the Capitol rioters when it was flown outside their beach home in New Jersey last summer.

In his letter on Thursday, the Roberts noted justices are responsible for making their own decisions on when to recuse themselves from cases.

The justices are currently considering two cases involving the Capitol riot, including one related to charges against the rioters and a second regarding whether Trump has immunity from prosecution on election interference charges.

Roberts’s letter also comes one day after Representative Jamie Raskin claimed in a New York Times op-ed that the Department of Justice could force both Alito and Justice Clarence Thomas to recuse themselves from Capitol riot-related cases. Critics argue Thomas’ wife supported efforts to overturn the election results.

“Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection,” Raskin wrote. “Each justice decides for him- or herself whether he or she can be impartial.”

But he argued that “begging them to do the right thing misses a far more effective course of action.”

“The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law,” Raskin wrote, adding that the DOJ and attorney general Merrick Garland “can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455.”

However, NR’s Dan McLaughlin refutes Raskin’s theory of the case, saying it misunderstands the constitutional separation of powers and would go against centuries of precedent.