The Supreme Court’s new term starts Monday, with plenty of open questions about whether and how the justices will be involved in deciding the 2024 presidential election, as well as how they’ll resolve a host of disputes over guns, transgender rights and much more.
But a letter sent Friday from House Democrats to Chief Justice John Roberts underscores open questions that still linger from last term about how the Roberts Court operates in deciding its biggest cases while under an ethical cloud.
The letter, from Reps. Jamie Raskin of Maryland and Alexandria Ocasio-Cortez of New York, cited a New York Times report from last month that said Roberts took over authorship of a Jan. 6-related opinion from Justice Samuel Alito after the Times reported in May that a symbol of the Stop the Steal movement flew outside Alito’s home following the Jan. 6, 2021, attack on the Capitol.
We already knew that Roberts authored the 6-3 ruling in Fischer v. United States, which narrowed obstruction charges against Jan. 6 criminal defendants — including, potentially, Donald Trump.
But Alito having been initially assigned to write it was a new detail from the Times report last month. When he’s in the majority, the chief has the power to assign who writes the opinion; otherwise, it’s the senior-most justice. (NBC News and MSNBC didn’t independently confirm the Times report, which was based on “justices’ private memos, documentation of the proceedings and interviews with court insiders, both conservative and liberal, who spoke on the condition of anonymity because deliberations are supposed to be kept secret.”)
The Times report suggested, but made clear it wasn’t stating, that the change in authorship was due to its reporting on Alito, which prompted calls for the Republican appointee’s recusal from Jan. 6-related cases (he declined). In any event, as I noted in the wake of last month’s report:
[If] the change in authorship was motivated at all by the appearance of impropriety of Alito authoring a Jan. 6-related opinion while facing recusal calls, then that should have been a sign to Roberts and Alito that Alito had no business sitting on the case. That is, if potential concern with making Alito the face of a pro-Jan. 6 defendant ruling was enough to take away the opinion’s authorship from him, then that same concern should have led to Alito not participating in the case, whether he was the author of the opinion or not. (The court did not immediately respond to my questions about the Times report regarding authorship and motivations behind Roberts’ reported reassignment.)
Writing to the chief justice in their roles as ranking member and vice ranking member of the House Oversight and Accountability Committee, Raskin and Ocasio-Cortez likewise observe that Roberts’ reported maneuver “suggests that you recognized that Justice Alito’s partisan ideological activity called into question his impartiality with regard to the Fischer matter.” They continued:
Yet, Justice Alito, like Justice Clarence Thomas, whose own ties to the “Stop the Steal” movement are well established, was allowed to participate in the Fischer case, in violation of the Court’s institutional commitment to the principle that a Justice must “disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.
The representatives posed a series of questions to Roberts, including (among others) whether he decided to replace Alito as the drafter of the Fischer opinion and whether he spoke with Alito or Thomas about their participation in Jan. 6 cases in light of legal requirements for recusal when judicial impartiality might reasonably be questioned.
Given his past refusals to cooperate with Congress, we shouldn’t expect substantive answers from Roberts. But if he did take over the opinion from Alito for optics concerns, then that only makes things worse. The passage of time as we enter a new term doesn’t change that.
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