One of the many big stories of this past Supreme Court term has been Justice Samuel Alito’s refusal to recuse himself from cases related to January 6, despite the appearance of irregularity created by flags flying outside his home that were also carried by rioters on January 6. A new report from The New York Times sheds more light on the situation and paints a potentially even more damning picture of the episode.
The Times reported Sunday that Alito was originally appointed by Chief Justice John Roberts to write the majority opinion in Fischer v. United States, the case that limited the Jan. 6 obstruction charges against the defendants. The appeal did not directly involve Donald Trump, but some of the Republican presidential nominee’s charges in his federal election interference case involve alleged obstruction, so he could also benefit from the Fischer ruling.
But according to the Times , Roberts took over the opinion shortly after the Times reported in May that an upside-down flag — a symbol of the Stop the Steal movement — had been flying outside Alito’s home following the Jan. 6 attack on the Capitol. We already knew that Roberts was the author of the 6-3 ruling in Fischer , published June 28, which Alito joined. But Alito initially being appointed by Roberts to write it is a new detail. If he is in the majority, the chief has the power to appoint who writes the opinion; otherwise, it is the Supreme Court.
NBC News and MSNBC have not independently confirmed the Times report, which also examined rulings that granted Trump broad criminal immunity and kept him on the presidential ballot despite the Constitution’s prohibition against insurrection. The report said it was based on “private memos from justices, documentation of proceedings and interviews with court insiders, both conservative and liberal, who spoke on condition of anonymity because deliberations must remain secret.”
So why did Roberts reportedly take the highly unusual step of adopting Alito’s Fischer opinion? The Times reported:
Who initiated the change or why is unclear. The move came days after The Times reported that an upside-down flag, a symbol of the Stop the Steal movement, had been hung outside Alito’s home following the attack on the Capitol. While the timing is suggestive, it’s unclear whether the two are connected. (All nine justices declined to respond to written questions from The Times, a Supreme Court spokeswoman said.)
But as If the change in authorship was in any way motivated by the fact that it was manifestly inappropriate for Alito to write an opinion about January 6 while he was facing calls for his recusal, that should have been a signal to Roberts and Alito that Alito should not continue to handle the case.
That is, if the potential concern that Alito would become the face of a pro-Jan. 6 defendant ruling was enough to strip him of authorship of the opinion, then that same concern should have led Alito to not participate in the case, regardless of whether he was the author of the opinion or not. (The court did not immediately respond to my questions about the Times report on authorship and the motives behind Roberts’ reported reassignment.)
If Roberts thought that by adopting the opinion he could avoid appearances, he has in fact only made matters worse.
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This article was originally published on MSNBC.com
