Late last month, the news site NOTUS reignited the perennial debate about Supreme Court recusals when it reported that Justice Samuel Alito’s son, Philip Alito, “quietly landed a political appointee job as a lawyer in the Treasury Department early last year.” The article claimed that the younger Alito’s job raised questions about his father’s ability to fairly weigh cases tied to the Treasury Department and prompted a flurry of social media posts about the court’s ethics rules.
Alito also faced scrutiny two years ago, when The New York Times reported that an upside-down American flag – a symbol sometimes used to show support for the protesters who stormed the U.S. Capitol on Jan. 6, 2021 – had flown outside his home in Alexandria, Virginia, after the 2020 election. Although Alito said his wife, Martha-Ann, was responsible for the flag, Democratic lawmakers and ethics experts called on the justice to recuse himself from cases addressing the events of Jan. 6 and the outcome of the 2020 election. He did not, but, according to a book released this spring, Alito did give up authorship of the court’s opinion in one such case, in which the court held that Jan. 6 defendants were being improperly charged with obstruction of an official proceeding.
This is not the first time a justice has navigated perceived or real ethical issues related to their loved ones’ actions. As Gabe Roth, the founder and executive director of Fix the Court, noted in a Bloomberg column about the backlash sparked by NOTUS’ story, Chief Justice John Roberts has faced calls to “disqualify himself from cases argued by attorneys from the firms where [his] wife Jane, a legal recruiter, has made placements.” And Justice Clarence Thomas, like Alito, has been confronted with recusal demands over his wife’s vocal support for conservative organizations and causes.
A surprise retirement
Perhaps the most famous example of a justice who faced an ethical challenge created by a family member is Justice Tom C. Clark, who was on the court from 1949 until 1967. Clark, who spent the 12 years before he became a justice working for the Justice Department, was appointed by President Harry S. Truman after serving as Truman’s attorney general.
While Justice Clark was working at One First Street, his son, Ramsey Clark, was following his father’s footsteps to the halls of power. After receiving a law degree in 1950, the younger Clark joined his father’s old law firm in Dallas. In 1961, he moved to the Justice Department as assistant attorney general of the Lands Division, serving in that role until 1965, when he became deputy attorney general.
In the fall of 1966, Ramsey Clark’s boss at the Justice Department, U.S. Attorney General Nicholas Katzenbach, left for the State Department, and Clark was picked to be acting AG. About five months later, in March 1967, President Lyndon B. Johnson announced he would appoint Clark to stay in the role, and Justice Clark surprised the country with an announcement of his own: He would be retiring from the court in order “to avoid any hint of impropriety,” as Time magazine put it.
In a 1969 interview for the Lyndon Johnson Presidential Library, the retired justice explained his decision to leave the court, noting that, even before Ramsey Clark joined the Justice Department, he was aware of judges who heard cases involving their sons and had come to believe such a situation “made a bad impression.” At the Supreme Court, Clark explained, more than half of the cases involve the Justice Department in some way, so it would have been nearly impossible to avoid weighing in on disputes that Ramsey Clark had worked on as attorney general. Clark added that “the appearance of justice, I think, is more important than justice itself” and that “judges owe a higher degree of not only duty but of public appearance than the average person.”
Recusal rules
Clark’s decision to retire was his own, and legal experts disagreed at the time about whether it was required. “Some observers had thought that Justice Clark could remain on the bench, because the Attorney General rarely signs documents that go before the Court,” The New York Times reported in March 1967. (The article noted that the conflict of interest is clearer with a solicitor general, “who represents the Justice Department before the Court,” which explains why Chief Justice Charles Evans Hughes’ son resigned as solicitor general when his father was appointed.)
Under federal law, a justice is required to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” although there is no apparent enforcement mechanism. The statute highlights a family member’s involvement in a case as one of many potential reasons for recusal, but it doesn’t offer an exhaustive definition of this. It states that justices should not hear cases in which they, their spouse, or a “minor child residing” in their household “has a financial interest” or “any other interest that could be substantially affected by the outcome of the proceeding.” It also says that recusal is required when justices, their spouse, “or a person within the third degree of relationship to either of them, or the spouse of such a person” is a “party to the proceeding,” is “acting as lawyer” in the case, is a potential “material witness,” or has an interest known to the justice that stands to be “substantially affected” by the outcome of the dispute.
It’s clear under this law that a justice would be expected to recuse himself if his son were to argue a case before the court, but, as the debate over Clark’s retirement illustrates, it’s less clear if having a family member serving in a prominent role in the executive branch means that a justice would not be able to hear cases involving any part of the administration.
In November 2023, after a series of scandals related to Alito and Thomas taking – and then not disclosing – luxury trips with people involved (or later involved) in Supreme Court cases, the court built on the federal law regarding recusals with a formal code of conduct, which uses much of the same language concerning potential conflicts of interest involving family members. Under the code, justices are required to recuse themselves from “a proceeding in which the Justice’s impartiality might reasonably be questioned.” The code defines this as a situation in which “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”
However, as SCOTUSblog reported when the code of conduct was released, it too “does not provide for any mechanism for its enforcement,” meaning that it is up to the justices to determine what to do when a potential conflict of interest falls into a grey area. And in making that determination, the justices may err on the side of hearing the case, because, as the code says, “[t]he loss of even one Justice may undermine” the court’s work.
In a statement to NOTUS about Philip Alito’s role at the Treasury Department, the Supreme Court’s public information officer, Patricia McCabe, shed some light on how the court has navigated potential ethics issues. Justice Alito did not recuse himself from this term’s tariffs cases, she explained, because Philip Alito “has not worked on any matter related to the tariffs imposed by the federal government.”
In his Bloomberg column, Roth, who has often criticized the court’s approach to recusals, wrote that he understands this decision. “If a case where Phil had direct involvement ever did reach his father’s desk, I’m confident Alito would recuse. Why? Because he’s done it in the past. When Phil was working as an aide on the Senate’s Permanent Subcommittee on Investigations in 2016, one of its subpoenas was challenged all the way to the Supreme Court. As Alito’s colleagues dismissed the challenge, a court order stated that the justice ‘took no part’ in considering it,” Roth said.
In any event, the ongoing debate over justices’ potential conflicts of interest is unlikely to vanish as long as confusion persists over how to apply and enforce the rules for recusal.
