Although the U.S. Supreme Court has been resisting calls to adopt an official ethics code, the nine justices did sign, on April 25, a Statement on Ethics Principles and Practices and submit it to the Senate Judiciary Committee.
The Statement said that when it comes to recusal, justices should "follow the same general principles and statutory standards as other federal judges" — in other words, recuse themselves when there is a possible conflict of interest.
But according to law professor Steven Lubet, Alito refused to recuse himself from a "major tax case."
In an article published by the Daily Beast on September 25, Lubet explains, "Instead of applying statutory law or Supreme Court precedents, Alito invented an entirely new rule, never before invoked by any justice. Claiming that recusal is simply the 'personal decision of each justice,' Alito announced that he would recuse himself only on the basis of a so-called 'sound reason' — an undefined, and previously unknown, rationale that has no inherent meaning."
Lubet draws a contrast between what the late Justice Antonin Scalia had to say about recusal and Alito's recent argument.
Scalia, Lubet notes, did not believe that recusal was "just a matter of personal choice."
"As I have pointed out before," Lubet argues, "the Constitution vests the judicial power of the United States in 'one Supreme Court,' not nine supreme justices. No single justice should be able to decide that his personal decisions are above the law."
