The Supreme Court is broken. More justices can fix it.

In 2003, the late Justice Antonin Scalia generated a scandal when it was reported that he’d accepted an invitation to go duck hunting with then-Vice President Dick Cheney at a time when Cheney was the defendant in a high-profile case before the Supreme Court. Recusal motions soon followed from other parties in the litigation, which Scalia denied in an indignant opinion that ridiculed his critics. 

More important than the outcome of the underlying case, which few remember today, was the Supreme Court’s process for considering disqualification. For the first time, the court formally announced its “historic practice” of referring recusal motions solely to the challenged justice.

Supreme Court justices are thus the only judges in the U.S. with complete and unreviewable discretion over their own disqualification. As a legal ethics professor and coauthor of the book, “Judicial Conduct and Ethics,” I spent the intervening decades explaining why this process is misguided and contrary to democratic values, only to see it used time and again.

My regretful conclusion is that the sitting justices will never reform. They have too much personal stake in maintaining their entitlements, and all nine have announced that “individual justices, rather than the court, decide recusal issues.”  

Thus, the only possible solution is to transform the court’s composition by increasing the number of justices in quick succession. A critical mass of new justices who are not invested in the antediluvian recusal practice may actually be willing to reconsider it.

Justice Samuel Alito and Chief Justice John Roberts surely did not realize they were delivering a compelling argument for court expansion when they recently reiterated the antiquated approach to disqualification in which each justice is the sole determiner of their own recusal.

The context for the current discussion — as first reported by the New York Times last month — is the upside-down American flag flying for several days at Alito’s home in January 2021, shortly before President Biden’s inauguration. 

It did not escape notice that similarly upside-down flags had been prominently carried at the Jan. 6 Capitol insurrection, leading many to infer that perhaps Alito was signaling sympathy for then-President Trump’s efforts to reverse the outcome of the 2020 election.

Nearly 50 House Democrats subsequently wrote to Alito, calling for his disqualification in Trump v. United States, currently pending in the Supreme Court, in which Trump is claiming immunity from prosecution for his alleged role in inspiring the Jan. 6 attack. 

“It is incontrovertible,” they wrote, “that at the time the upside down flag flew from your front lawn, ‘Stop the Steal’ activists had adopted the inverted flag as their symbol of protest.” Invoking Canon 3B of the court’s recently adopted Code of Conduct, they argued that Alito’s recusal was required because his “impartiality” might reasonably be questioned.

Sen. Richard Durbin (D-Ill.) and Rep. Sheldon Whitehouse (D-R.I.) made similar points in a letter to the chief justice, urging him “to immediately take appropriate steps to ensure that Justice Alito will recuse himself in any cases related to the 2020 presidential election and January 6 attack on the Capitol, including the question of former President Trump’s immunity from prosecution.”

The two justices responded with versions of the court’s “historic” approach to disqualification. Roberts simply deferred to Alito, “reaffirm[ing] the practice we have followed for 235 years, pursuant to which individual justices decide recusal issues.”

In a letter to Durbin and Whitehouse, Alito conceded that recusal could be necessary under the Code of Conduct if his impartiality might reasonably be questioned, noting that the test is whether “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his or her duties.”

Alito said that his wife had flown the flag to indicate her distress over an “extremely nasty neighborhood dispute.”   

“I was not even aware of the upside-down flag until it was called to my attention,” he wrote. “As soon as I saw it, I asked my wife to take it down, but for several days, she refused.”

On these facts, Alito declared, no reasonable person would doubt his impartiality, unless “motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases.”

There are holes in Alito’s account. The New York Times reported that the upside-down flag was actually flown several weeks before the neighborhood confrontation, calling Alito’s entire explanation into question. 

And Alito himself evidently realized that the flag created an appearance of impropriety. Otherwise, why persist in asking his wife to take it down over a period of days? These facts alone might cause a reasonable person to doubt the justice’s impartiality.

But no matter. Under Supreme Court practice, Alito himself served as the subject, key witness and exclusive judge of his own impartiality, secure from all further inquiry or review.

The chief justice may have confidence in a procedural relic of the 18th century, but we have learned much about the psychology of decision-making over the past 235 years. As the Supreme Court itself has observed, a “realistic appraisal of psychological tendencies and human weakness” may result in disqualifying bias, even if the judge is not consciously aware of it.

There is not much reason to expect the current justices to reform their solipsistic recusal practice, which they jointly reaffirmed just last year. After all, the approach was deeply entrenched when each of them first joined the court. Even at the highest level, neophytes have little incentive to challenge the traditional prerogatives of their senior colleagues.

The proposed Judiciary Act of 2023, sponsored by Sen. Edward Markey (D-Mass.), would add four seats to the Supreme Court. There are sincere arguments for and against court expansion, which I will not repeat here. 

One nonpartisan benefit, however, is that adding four justices in a relatively short time might enable the newcomers, with no commitment to the recusal status quo, to initiate a review of Supreme Court disqualification practices. (Disclosure: My daughter is president of Take Back the Court, a nonprofit organization advocating Supreme Court expansion.)

Perhaps that is too much to hope for. But Alito has demonstrated that the Supreme Court’s recusal process is broken beyond repair, and it may take a radical personnel change to address it.

Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.