Top Democratic Rep. Jamie Raskin argued in the New York Times this week that Justices Clarence Thomas and Samuel Alito could, in theory, be forced to step down from cases related to the January 6 Capitol riots.
In a guest essay for the New York Times on Wednesday, Raskin detailed ways Thomas and Alito could be forced to recuse themselves from the upcoming Trump v. United States and Fischer v. United States, both involving former President Trump's role during the Capitol protests.
"Of course, Justices Alito and Thomas could choose to recuse themselves — wouldn’t that be nice? But begging them to do the right thing misses a far more effective course of action," Raskin wrote.
Alito and Thomas, both nominated by Republican presidents and part of the Supreme Court's conservative wing, have come under fire from Democrats and mainstream media in recent months over claims that they cannot objectively rule on matters around Jan. 6.
Raskin claimed that the Department of Justice through U.S. Attorney General Merrick Garland can petition the seven other Supreme Court justices to demand recusal under already existing federal statutes regarding judicial disqualification and the U.S. Constitution.
"This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command," he wrote.
Raskin added that the other justices have not just a constitutional obligation but a moral one as well.
"But even if no member of the court raises the issue of recusal, the urgent need to deal with it persists. Once it is raised, the court would almost surely have to find that the due process clause and Section 455 compel Justices Alito and Thomas to recuse themselves. To arrive at that substantive conclusion, the justices need only read their court’s own recusal decisions," he wrote.
Raskin has emerged as one of the most prominent Democrats in the House since being named as an impeachment manger in Trump's Senate trial on the charge of inciting an insurrection in 2021. He is a frequent cable news guest.
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Raskin called out Chief Justice John Roberts’ past assertion that "judges are like umpires," calling for him to prove his point.
"But professional baseball would never allow an umpire to continue to officiate the World Series after learning that the pennant of one of the two teams competing was flying in the front yard of the umpire’s home. Nor would an umpire be allowed to call balls and strikes in a World Series game after the umpire’s wife tried to get the official score of a prior game in the series overthrown and canceled out to benefit the losing team," he wrote.
"But the Constitution and Congress’s recusal statute provide the objective framework of analysis and remedy for cases of judicial bias that are apparent to the world, even if they may be invisible to the judges involved. This is not really optional for the justices," Raskin concluded. "I look forward to seeing seven members of the court act to defend the reputation and integrity of the institution."
Democrats and mainstream media members have been demanding Thomas and Alito recuse themselves from cases involving Trump by linking them to the Jan. 6 riots. Alito has been the subject of a media onslaught in recent weeks concerning a dispute with liberal neighbors in 2021 and flags he says his wife put up at that time, including an upside-down American one.
Raskin previously called for Thomas to recuse himself in December, pointing to his wife, conservative activist Ginni Thomas, and her past support of Trump's claims of 2020 election fraud.
"I think anybody looking at this in any kind of dispassionate, reasonable way would say if your wife was involved in the big lie in claiming that Donald Trump had actually won the presidential election and been agitating for that and participating in the events leading up to Jan. 6 that you shouldn’t be participating," Raskin said on CNN’s "State of the Union."
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He added, "He absolutely should recuse himself. The question is: what do we do if he doesn’t recuse himself?"
