Supreme Court Justice Samuel Alito has been going out of his way to demonstrate precisely why the court needs to either voluntarily adopt a code of ethics, or have it imposed on the justices by Congress. That’s the message Senate Judiciary Committee Democrats gave Chief Justice John Roberts in a letter Thursday, shouldering him with the responsibility of telling Alito to recuse himself from a case that will be heard during the next session.
Alito has been relying on The Wall Street Journal in recent weeks to tell his side of his ethics-abusing story. First, he was gifted an op-ed there to rebut ProPublica’s story about how he had enjoyed an all-expense-paid luxury fishing trip with a wealthy hedge fund manager who had business before the court. Then he granted a long softball interview to the paper, declaring that he and the court are above the law. That interview was with David Rivkin Jr., a regular contributor to the Journal; he also happens to be a lawyer who will be arguing before the court in a major tax case next session.
Alito’s brazen efforts to declare himself untouchable prove what Senate Democrats have been saying: The court needs to be reformed.
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Judiciary Chairman Dick Durbin and all of the Democrats on the committee wrote to Roberts to point out that the Statement on Ethics Principles and Practices the court is operating under is worthless. In declining to talk to the committee about the issue, Roberts insisted all the justices have agreed to this statement, so there was no need for further action and no need for him to talk to Congress about it. Alito’s actions, they write, prove how worthless that statement is. The justice has “twice violated this admittedly limited Statement on Ethics by ‘creat[ing] an appearance of impropriety in the minds of reasonable members of the public.’”
First he used the Journal to “[opine] on the constitutionality of legislation under consideration by the U.S. Senate,” and he “publicly prejudged a matter that could come before the Court in the future.” That’s a violation of the Statement on Ethics because it could lead “an unbiased and reasonable person who is aware of all relevant facts” to “doubt that the Justice could fairly discharge his or her duties.”
The second violation was prejudging a potential case in a public statement in the interview with lawyer Rivkin, who is going to be arguing in front of Alito next session. “Mr. Rivkin’s access to Justice Alito and efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties,” the senators wrote.
Then they turn the screws on Roberts, throwing his own words back at him.
Using Roberts’ own words against him is a smart tactic. It makes him responsible for the justices’ conduct and it puts the onus on him to rein in Alito. Durbin knows just as well as Roberts that Alito is too arrogant and too egotistical to accept that intervention. It’s entirely Alito’s decision whether or not to recuse on any case—Roberts can’t make him do it.
This won’t make Alito act ethically. He believes he is above all that. What it will do is increase public scrutiny on this case and Roberts knows that, too. It’s one more pressure point to try to force Roberts to act on imposing a binding code of conduct and ethics for the justices. It’s not going to happen legislatively as long as there’s a Republican majority in the House and Republicans can filibuster in the Senate.
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Alito has been relying on The Wall Street Journal in recent weeks to tell his side of his ethics-abusing story. First, he was gifted an op-ed there to rebut ProPublica’s story about how he had enjoyed an all-expense-paid luxury fishing trip with a wealthy hedge fund manager who had business before the court. Then he granted a long softball interview to the paper, declaring that he and the court are above the law. That interview was with David Rivkin Jr., a regular contributor to the Journal; he also happens to be a lawyer who will be arguing before the court in a major tax case next session.
Alito’s brazen efforts to declare himself untouchable prove what Senate Democrats have been saying: The court needs to be reformed.
Campaign Action
Judiciary Chairman Dick Durbin and all of the Democrats on the committee wrote to Roberts to point out that the Statement on Ethics Principles and Practices the court is operating under is worthless. In declining to talk to the committee about the issue, Roberts insisted all the justices have agreed to this statement, so there was no need for further action and no need for him to talk to Congress about it. Alito’s actions, they write, prove how worthless that statement is. The justice has “twice violated this admittedly limited Statement on Ethics by ‘creat[ing] an appearance of impropriety in the minds of reasonable members of the public.’”
First he used the Journal to “[opine] on the constitutionality of legislation under consideration by the U.S. Senate,” and he “publicly prejudged a matter that could come before the Court in the future.” That’s a violation of the Statement on Ethics because it could lead “an unbiased and reasonable person who is aware of all relevant facts” to “doubt that the Justice could fairly discharge his or her duties.”
The second violation was prejudging a potential case in a public statement in the interview with lawyer Rivkin, who is going to be arguing in front of Alito next session. “Mr. Rivkin’s access to Justice Alito and efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties,” the senators wrote.
Then they turn the screws on Roberts, throwing his own words back at him.
Using Roberts’ own words against him is a smart tactic. It makes him responsible for the justices’ conduct and it puts the onus on him to rein in Alito. Durbin knows just as well as Roberts that Alito is too arrogant and too egotistical to accept that intervention. It’s entirely Alito’s decision whether or not to recuse on any case—Roberts can’t make him do it.
This won’t make Alito act ethically. He believes he is above all that. What it will do is increase public scrutiny on this case and Roberts knows that, too. It’s one more pressure point to try to force Roberts to act on imposing a binding code of conduct and ethics for the justices. It’s not going to happen legislatively as long as there’s a Republican majority in the House and Republicans can filibuster in the Senate.
RELATED STORIES:
The Supreme Court is more unpopular than ever
Justice Alito's op-ed is a confession of corruption
Democrats remind Alito that he's not a king. Even if he thinks he is
Supreme Court corruption gets a Senate spotlight
It’s a joyous week in Wisconsin, where Janet Protasiewicz’s swearing-in means that the state Supreme Court now has its first liberal majority in 15 years. We’re talking about that monumental transition on this week’s episode of “The Downballot,” including a brand-new suit that voting rights advocates filed on Protasiewicz’s first full day on the job that asks the court to strike down the GOP’s legislative maps as illegal partisan gerrymanders.
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