Justices Clarence Thomas and Samuel A. Alito Jr., rejecting calls for their disqualification, participated in the case, siding with a member of the mob that stormed the Capitol on Jan. 6, 2021.
Experts in legal ethics have said that the activities of the justices’ wives raised serious questions about their impartiality.
Virginia Thomas, known as Ginny, helped shape the effort to overturn the 2020 election. “Biden and the Left is attempting the greatest Heist of our History,” Ms. Thomas wrote in a text message to Mark Meadows, President Donald J. Trump’s chief of staff, during the fraught weeks between the 2020 presidential election and the Jan. 6 attack.
Justice Thomas has not given a public explanation for remaining on the case, and he has taken part in other cases arising from the election and the 2021 attack. But he recused himself in October from a case concerning John Eastman, a conservative lawyer who had advised Mr. Trump. Justice Thomas, for whom Mr. Eastman had served as a law clerk, gave no reasons for his decision to disqualify himself from that case.
Justice Alito has been more forthcoming. He explained why he would not recuse from the case in a letter to Democratic lawmakers in May after The New York Times reported that flags that have been used to support the “Stop the Steal” movement had been displayed at his homes in Virginia and New Jersey.
The justice said his wife, Martha-Ann, was responsible. “My wife is fond of flying flags,” he wrote. “I am not. She was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.”
The court recently adopted a code of conduct for the justices. It allows individual justices to make their own decisions about recusal.
One provision of the code says that “a justice is presumed impartial and has an obligation to sit unless disqualified.”
A second provision says that “a justice should disqualify himself or herself in a proceeding in which the justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his or her duties.”
The flags displayed at his properties, Justice Alito wrote, did not require him to recuse from the case. “A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases,” he wrote, “would conclude this event does not meet the applicable standard for recusal.”
Indeed, he wrote, he had an obligation to sit and hear the case.
