Justice Alito refuses to recuse himself from Jan. 6 cases
Supreme Court Justice Samuel Alito’s decision not to step aside from Jan. 6 cases comes after controversial flags were seen at his homes.
This piece originally appeared on The Dispatch, a site that focuses on fact-based reporting and commentary on politics, policy and culture – informed by conservative principles.
The nine justices of the Supreme Court agreed to hear 62 cases this term, which began in October. Decisions are released as the justices reach them, which typically means the most straightforward ones are out of the way quickly.
That also means that the more complicated and often controversial cases tend to be released during the first few weeks of summer. All the better to trigger mass protests in the sweltering D.C. heat.
The justices still have 32 decisions to release before their July recess, and several are poised to become lightning rods at a time when the court faces attacks from both sides of the political aisle. In the next month or so, the Supreme Court could make landmark changes to the breadth of executive power (for both the president and the administrative state), the rules that govern the internet, and states’ ability to restrict access to abortifacient drugs, among other pressing questions.
Decision season has already begun. On May 30, the court ruled unanimously that if the New York State Department of Financial Resources, directed by Maria Vullo, advised banks and insurance groups to end business ties with the National Rifle Association, that would constitute a First Amendment violation. Critically, the Supreme Court did not make a judgment on whether Vullo actually advised financial services to cut connections with the NRA. “Rather, the Court said that, if the NRA is correct on the facts, then it should win on the law,” Eugene Volokh, a UCLA law professor and counsel-of-record for the NRA in NRA v. Vullo, told The Dispatch.
More: In Supreme Court NRA ruling, justices issue unanimous decision in favor of gun group
Prior to that, on May 23, the Supreme Court overturned a district court’s decision that South Carolina’s new congressional district map—passed by a GOP-controlled legislature—was racially gerrymandered. The court’s 6-3 decision held that there was insufficient evidence that race—rather than partisanship—was a motivating factor in the map’s design.
But the justices don’t always have to decide questions based on what interested parties (and headline writers) consider the main topic at hand. One of the key cases still to be decided, for example, involves the legal status of mifepristone, a drug first approved by the Food and Drug Administration (FDA) in 2000 that is often used to induce abortions.
The Alliance for Hippocratic Medicine, an anti-abortion advocacy group, sued the FDA, claiming the federal agency improperly approved the abortion drug’s use in 2000 and later relaxed regulations around it. But that claim garnered little attention from the justices during oral arguments, as they seemed more focused on the question of standing—whether AHM had the legal right to sue to begin with. Such a decision might be exciting for legal nerds, but would represent no slam dunk for the abortion rights or anti-abortion cause.
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For other cases, though, the justices seem likely to sink their teeth into the substance more directly.
Prior to January 6, 2021, Joseph Fischer was a police officer in Pennsylvania. But one “Stop the Steal” rally later, he could face prison time for a bevy of federal charges, including “obstructing an official proceeding.” Federal prosecutors have argued that’s literally a description of what he—and more than 350 other January 6 defendants—did. “Take democratic congress to the gallows,” Fischer texted before the rally turned violent. “Can’t vote if they can’t breathe..lol.”
But Fischer has argued all the way up to the Supreme Court that punishing him as someone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” is an over-interpretation of the statute at hand. Fischer’s legal team has argued that the law only applies to evidence tampering in matters such as in congressional inquiries and federal investigations.
During the case’s oral arguments in April, Justice Elena Kagan noted there were “multiple ways” the law could have been written to only apply to evidence tampering, “but it doesn’t do that.” But Justice Samuel Alito—who has faced and dismissed calls for his recusal in this case after the New York Times reported on a flag-related neighborhood dispute last month—appeared concerned about an overly broad application of the law, asking whether five people chanting during proceedings could be charged under this law.
“What happened on January 6 was very, very serious, and I’m not equating this with that,” Alito said. “But we need to find out what are the outer reaches of this statute under [federal prosecutors’] interpretation.”
More: Justice Alito rejects demands that he step aside from Jan. 6 cases because of flags
Fischer’s case isn’t the only one that has its roots in election denial. In United States v. Trump, the question before the Supreme Court—emerging from special counsel Jack Smith’s federal election interference case against former President Donald Trump, who was also charged with obstructing an official proceeding—is about the breadth of presidential immunity from criminal prosecution.
Trump’s legal representative, John Sauer, argued before the court that presidents need to be unflinching and undaunted—and that “without presidential immunity from criminal prosecution, there can be no presidency as we know it.” Sauers claimed that without immunity, President Joe Biden could be charged for permitting illegal immigrants entry into the country because public policymaking is a form of official conduct. The line between official conduct and private conduct can often be “fuzzy,” Ilya Somin, a law professor at George Mason University, told The Dispatch.
But Trump may be aiming too high. “Trump is asking for near-total immunity for anything that the president might do as an ‘official act,’ broadly defined,” Somin said. “I think it’s very clear there is no majority on the Supreme Court that’s going to give him that, but it could be that there is a majority for creating some sort of narrower presidential immunity.”
Justice Brett Kavanaugh for example appeared inclined during oral arguments, at least in part, toward a narrow immunity, saying there is a “serious constitutional question whether a criminal statute can apply to the president’s criminal acts.”
Why is this question just being answered now? “There is very little precedent because we have never had a current or former president of the United States charged with a crime that, at least in some way, relates to things he did while in office,” Somin said. That’s why Justice Neil Gorsuch stressed during oral arguments that he is “not concerned about this case as much as future ones”—because there’s no previous precedent, he said, the court is “writing a rule for the ages.”
More: Donald Trump’s strange split-screen moment: SCOTUS immunity case and hush money trial clash
The Supreme Court could deal another blow to executive power in Loper Bright Enterprises v. Raimondo when it revisits the so-called Chevron doctrine. The court’s 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. was a major victory for the Reagan administration’s Environmental Protection Agency (EPA)—and its then recently departed administrator, Anne Gorsuch Burford, Justice Gorsuch’s mother—allowing the agency to pare down lengthy review and permit processes by changing its interpretation of federal law. But some have argued that deferring to the agency’s interpretation of the law, so long as it is “reasonable” and “permissible,” has allowed the executive branch to grow too powerful and unaccountable to Congress in the 40 years since Chevron.
A majority of justices seemed inclined during oral arguments in January to at least limit the scope of Chevron—and possibly overturn the decision completely. “The reality is the kind of uniformity that you get under Chevron is something only the government could love because every court in the country has to agree on the current administration’s view of a debatable statute,” Gorsuch said during oral arguments in a statement that, 40 years ago, probably would have seen his mother revoke his dessert privileges. “You don’t get the kind of uniformity that you actually want, which is a stable decision that says, ‘This is what the statute means.’”
And in what’s been a big year for efforts to regulate social media companies, three cases before the court—Murthy v. Missouri and two cases against Florida and Texas likely to be reviewed together—could draw First Amendment lines in the sand as it relates to social media content.
In Murthy v. Missouri, Missouri and Louisiana sued the Biden administration, claiming the federal government pressed social media companies to censor what it saw as misinformation and disinformation on issues ranging from the COVID-19 pandemic to the results of the 2020 presidential election. The states make two core arguments, Volokh said: that the government’s actions were coercive, and that even if simply asking companies to take content down isn’t coercive, it’s still unconstitutional.
More: Supreme Court to decide if White House went too far fighting social media misinformation
The second case consists of two challenges to laws in Florida and Texas. “Florida and Texas essentially passed laws which say—with very few exceptions—social media firms are not allowed to engage in content moderation,” Somin said. Republican state legislators grew frustrated by what they saw as unfair content moderation by these private companies, so they banned content moderation of political speech altogether.
Does that amount to a First Amendment violation? It depends on how you view social media companies. “If you look at what one might call platforms—private entities that host speech by others—you might think of them as falling on a spectrum,” Volokh told the Dispatch.
More: Supreme Court sounds skeptical of Texas and Florida laws to regulate social media
On one side are editorial outlets, like The Dispatch, for example. Our editors are very kind, but they surely are not compelled to publish every article that writers pitch to them. “They have every right to pick and choose what they include—what they host essentially—in their publication,” Volokh explained.
But not every company has that right, per se. For example, Volokh said, phone companies may be displeased that their services are being used by a local communist party or Ku Klux Klan chapter, but they don’t have the right to cancel such groups’ phone lines for that reason. That being said, the Supreme Court isn’t deciding where to place social media companies on that spectrum as much as it’s deciding whether they have a First Amendment right to exclude service.
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We may know the decisions in these cases or any of the others remaining as early as tomorrow monring—and the court will keep cranking them out on Mondays and Thursdays for the foreseeable future. United States v. Rahimi—a due process case that could decide whether individuals with domestic violence restraining orders can be banned from possessing firearms—could be on deck. There is also an emergency case evaluating whether an Idaho law restricting abortion conflicts with a federal law mandating “necessary stabilizing treatment” be provided in hospitals receiving Medicare funding, a decision that could affect not only Idaho but six other states that have enacted similar abortion restrictions.
And in the background of the substantive legal decisions is longstanding criticism of the court from the left—reignited by the Alito flag controversy—and potential discontent on the right if Republican-appointed justices rule presidential immunity does not protect Trump from special counsel Jack Smith’s felony charges.
By the time July rolls around, the justices likely will be craving their summer recess.