Recent revelations relating to Justice Alito’s actions following the 2020 elections, in particular the flying of two flags closely associated with pro-Trump supporters, raised new questions about his impartiality and objectivity in the several Trump-related cases now pending before the Court. 

In an interview with Business Insider, Professor Kalir opined that Alito’s actions clearly call into question his impartiality. This is because, by now, his objectivity “might reasonably be questioned,” which is the standard followed by the Code of Conduct. The Code provides several examples to this general rule, including one where the judge “has made a public statement that . . .  appears to commit the judge to reach a particular result” in the case, which seems to fit neatly in this matter. Alas, the Supreme Court never agreed to be bound by the Code of Judicial conduct. And the new Code issued by the Court just a few months ago, while maintaining the general impartiality standard, conspicuously omits the provision relating to public statements. 

In any event, Professor Kalir reminds us that the new Supreme Court Code is merely performative, and is not binding in any real sense. Indeed, without any enforcement mechanism – either internally within the Court or externally – the odds that the recent revelations would have any effect on Justice Alito are slim to none.