Senate Judiciary Committee Chairman Richard J. Durbin on Wednesday accused Supreme Court Justice Samuel A. Alito Jr. of disregarding the separation of powers by intervening in legislative activity.
Mr. Durbin warned that the Bush-appointed justice was “unwise and unwelcome” by publicly criticizing legislation that would impose an ethics code on the high court.
“Justice Alito is providing speculative public commentary on a bill that is still going through the legislative process. Let’s be clear: Justice Alito is not the 101st member of the United States Senate. His intervention in Article I activity is unwise and unwelcome,” said Mr. Durbin, Illinois Democrat.
“The ethical conduct of Supreme Court Justices is a serious matter within this Committee’s jurisdiction. Ensuring ethical conduct by the justices is critical to the Court’s legitimacy. The next time Justice Alito thinks about taking a private plane to a billionaire-funded fishing trip, he should have to ask more than, ‘Can I take this empty seat?’ He should have to ask if doing so is consistent with his legally mandated ethical obligations,” Mr. Durbin said.
Justice Alito recently spoke out against Senate Democrats’ plans to write rules for how the justices conduct themselves. He said lawmakers lack the authority to regulate the justices’ activities and conduct.
He was the first justice to push back against proposing legislation to impose a code of ethics on the Supreme Court.
“Congress did not create the Supreme Court,” Justice Alito told The Wall Street Journal in an interview published Friday. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
The Senate Judiciary Committee recently advanced legislation that would require the court to adopt a code of ethics, create a way to probe alleged misconduct and improve transparency and explanations for recusals and connections justices share with parties that may have cases before the court.
Republicans said the Democrats’ moves to regulate the high court is a politically motivated and an attempt to delegitimize the court because of its 6-3 conservative majority.
The legislation moved out of the committee in a party-line vote on July 20. It is unlikely to pass the 51-49 divided Senate where most legislation must garner 60 votes to survive.
The push for ethics legislation by Democrats follows news reports detailing social and business relationships between the justices and a variety of benefactors.
Last month, Justice Alito, who joined the court in 2006, beat ProPublica to the punch. He published an op-ed in The Wall Street Journal rebutting a then-unpublished ProPublica article accusing him of ethics violations. He said ProPublica was misleading readers in an article about the justice’s ties to Paul Singer, a billionaire hedge-fund manager.
The ProPublica article detailed how Mr. Alito took a vacation paid for by Mr. Singer, who had matters before the high court.
“ProPublica has leveled two charges against me: first, that I should have recused in matters in which an entity connected with Paul Singer was a party and, second, that I was obligated to list certain items as gifts on my 2008 Financial Disclose Report. Neither charge is valid,” Justice Alito wrote.
The op-ed followed a series of reports from ProPublica about Justice Clarence Thomas, the longest-serving member on the bench. ProPublica reported that Harlan Crow, a GOP megadonor, paid private school tuition at Hidden Lake Academy and Randolph-Macon Academy for Justice Thomas’ great-nephew, whom the justice took in to raise at the age of 6.
The tuition total could have cost more than $150,000, according to ProPublica. Justice Thomas did not disclose the payments in his financial disclosure forms, and the news outlet suggested that runs afoul of ethical standards required of a federal judge.
ProPublica also reported in April that Justice Thomas did not disclose that he had taken multiple luxury vacations with Mr. Crow or that Mr. Crow had purchased his mother’s home even though she continued to reside there.
The Washington Post followed with an April 16 article examining what appeared to be a typo on the justice’s financial disclosure related to family real estate holdings in which he reported rental income to Ginger Ltd. Partnership instead of Ginger Holdings LLC.
The New York Times followed with a piece critical of Justice Thomas and other Republican appointees collecting generous salaries to teach courses at George Mason University’s Antonin Scalia School of Law.
Justice Thomas said he consulted with colleagues about disclosure requirements and didn’t skirt any rules.
In response to Democrats’ concerns about ethics, Chief Justice John G. Roberts Jr. said the high court has generally followed the Judicial Conferences’ Code of Ethics that are binding on lower courts — but not the Supreme Court — since 1991.
All justices must file disclosures that are reviewed by the Judicial Conference Committee on Financial Disclosure and follow what lower courts do with recusals, though the system is flexible.
Chief Justice Roberts said the justices have faced increased threats and sometimes do not disclose travel arrangements for security reasons.
Chief Justice Roberts refused to testify before the lawmakers about their ethics concerns. But he has spoken out in the past about questions surrounding Congress’ ability to police the Supreme Court.
“The Court has never addressed whether Congress may impose those requirements on the Supreme Court,” he wrote in a 2011 end-of-year report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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