Alito pushes back on Senate Democrat calls for recusal in upcoming case

Supreme Court Justice Samuel A. Alito Jr. rebuffed a request by Senate Democrats to recuse himself in a case after he told a reporter that ethics legislation for the high court would be unconstitutional.

In orders from the high court released Friday, the George W. Bush appointee said there was “no valid reason” he should not hear the case of Moore v. United States.

The dispute concerns a couple who challenge the taxing of unrealized income as minority shareholders in a corporation that reinvests its profits. 

David Rivkin, a lawyer representing the couple in the case that will be heard in the upcoming term, co-authored stories in The Wall Street Journal that discussed Justice Alito’s view on the debate in Congress over imposing an ethics code on the high court and discussed the justices’ security concerns. 

The stories were published in April and July.

Justice Alito said a call for him to recuse himself from the case is unwarranted, noting that other justices have sat for interviews with media outlets and even co-written books with attorneys who appear before the court.

He said the justices must put aside personal comments or analysis of their work when considering a legal dispute.

“There was nothing out of the ordinary about the interviews in question. Over the years, many justices have participated in interviews with representatives of media entities that have frequently been parties in cases before the court,” he wrote.

Former law clerks, former colleagues and acquaintances often have business before the bench, Justice Alito said.

“If we recused in such cases, we would regularly have less than a full bench, and the court’s work would be substantially disrupted and distorted. In all the instances mentioned above, we are required to put favorable or unfavorable comments and any personal connections with an attorney out of our minds and judge the cases based solely on the law and the facts. And that is what we do,” he wrote.

The lengthy explanation of his decision not to recuse is somewhat of a win for critics who have been calling for more transparency from the high court into decision-making surrounding potential conflicts of interest.

Senate Democrats have been pushing legislation that would require the high court to impose an ethics code on itself after a series of news articles came out in recent months criticizing some of the conservative justices’ relationships with billionaires. 

The high court doesn’t have a mandatory code of ethics, even though lower court judges are expected to avoid impropriety.

Chief Justice John G. Roberts Jr. has said the high court has generally followed the Judicial Conferences’ Code of Ethics binding on lower courts — but not the Supreme Court — since 1991.

He said all justices must file disclosures that are reviewed by the Judicial Conference Committee on Financial Disclosure and follow what lower courts do with recusals. He noted the system is flexible, given the composition of the high court.

He also said the justices’ security has faced increased threats and justices sometimes don’t disclose travel arrangements for safety reasons.

Senate Republicans have dismissed the accusations of ethics concerns and said it’s a political attempt by Democrats to delegitimize the Supreme Court.

In a letter Aug. 3, Senate Judiciary Committee Chairman Dick Durbin and his Democratic colleagues asked the chief justice to ensure Justice Alito’s recusal from the case involving Mr. Rivkin and from hearing any legal challenges to proposed ethics legislation for the bench.

“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 letter read.

Mr. Durbin said Justice Alito’s refusal to recuse “surprises no one” after The Wall Street Journal published a “puff piece” about the justice. 

“Why do these Justices continue to take a wrecking ball to the reputation of the highest court in the land?” Mr. Durbin said. “The Court is in a crisis of its own making, and Justice Alito and the rest of the Court should be doing everything in their power to regain public trust, not the opposite. This episode is further proof that Chief Justice Robert’s failure to act remains untenable, and Congress needs to pass the SCERT Act to create an enforceable code of conduct. Supreme Court Justices should be held to the highest ethical standards, not the lowest.”