Supreme Court Justice Samuel Alito sharply rejected calls from Democratic senators that he not participate in an upcoming tax case where one of the lawyers involved also participated in recent Wall Street Journal interviews of the conservative jurist.
Alito, in a court filing Friday, said the argument for him to recuse was “unsound” and that there was “no valid reason” for him not to participate in the case.
“When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate,” Alito wrote, referring to David B. Rivkin, the opinion journalist in question who is representing one of the parties in the tax case.
“The case in which he is involved was never mentioned; nor did we discuss any issue in that case either directly or indirectly. His involvement in the case was disclosed in the second article, and therefore readers could take that into account.”
Alito announced his decision not to recuse with the list of orders the Supreme Court released on Friday morning. His statement rattled off several examples of justices on the left and right ends of the ideological spectrum sitting for interviews with news outlets that were also parties in cases before the high court. Alito also said that his fellow justices had been interviewed by – and even written books with – lawyers who practice before the Supreme Court, and that those interviews “did not result in or require recusal.”
The case in question is a dispute that has caught the attention of some who fear it could vastly expand the federal taxing power.
The Tax Cuts and Jobs Act of 2017 mandates a tax on accumulated earnings of certain foreign corporations in which an individual owns shares.
Rivkin is not the lead lawyer in the case and is not expected to argue during oral arguments. Nevertheless, Senate Democrats say that Rivkin’s access to Alito could cast doubt on Alito’s ability to remain neutral in the case.
Alito on Friday contended that Illinois Sen. Dick Durbin, the Senate Judiciary Chairman who led the calls for Alito to sit out in the case, was apparently pushing a theory for recusal that “fundamentally misunderstands the circumstances under which Supreme Court Justices must work.”
“We have no control over the attorneys whom parties select to represent them, and as a result, we are often presented with cases in which one of the attorneys has spoken favorably or unfavorably about our work or character,” Alito said, while also pointing to how justices routinely review briefs submitted by members of Congress who have publicly supported or opposed them, including in confirmation proceedings.
“We participate in cases in which one or more of the attorneys is a former law clerk, a former colleague, or an individual with whom we have long been acquainted,” 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.”
He said that the justices “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.”
Durbin, in a statement Friday, said that 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.”
“Justice Alito, of the originalist school of thinking that empty seats on an airplane don’t count as gifts, surprises no one by sitting on a case involving a lawyer who honored him with a puff piece in the Wall Street Journal,” Durbin said. “Why do these Justices continue to take a wrecking ball to the reputation of the highest court in the land?”
Gabe Roth, the head of Fix the Court, an organization that advocates for more transparency in the judicial branch, said in a statement that “Justice Alito’s decision to dress up some misguided views of his ethical obligations as a formal Court opinion doesn’t make the missive any more correct or any less imperious.”
Roth argued that Rivkin could have bowed out from participating in the stories, leaving the other conservative opinion-journalist on the byline to do interviewing.
“That Rivkin appeared as a co-byline in both the first interview, when his petition was pending, and in the second interview, given just after the petition was granted, raises ethical questions that seem obvious to everyone but Alito and require disqualification,” Roth said, adding that the counter examples Alito gave in his Friday statement were “inapt.”
“It’s not like Nina Totenberg’s name was on the cover of a Supreme Court brief at the time she interviewed some justices,” Roth said, referring to the NPR journalist whose interviews with justices Alito cited.
Democrats on the Senate Judiciary Committee wrote Chief Justice John Roberts in early August to raise concerns about the Alito interviews, published in the Wall Street Journal’s opinion section, and his comments in them. Over the summer, the committee also advanced ethics reform for the high court, though that legislation is not expected to become law while Republicans control the House and exercise filibuster power in the Senate.
Though Justice Clarence Thomas has attracted much of the scrutiny related to ethics related issues at the high court, Alito has also been a target for criticism – particularly for not disclosing a 2008 private flight on a jet chartered by a billionaire whose hedge fund was linked to several disputes before the court. Alito has also been at the forefront of the court’s pushback to efforts by Congress to bring about clearer ethics standards at the Supreme Court.
He preempted the ProPublica report on the 2008 jet flight with an essay in the Wall Street Journal opinion section that said he had no obligation to recuse in the case in question, while defending his failure to report the trip on his financial disclosure form that year.
In one of the recent interviews Alito gave to the Journal, he said that Congress has no authority under the Constitution to regulate the Supreme Court. That remark prompted the Democrats to ask Roberts to “take appropriate steps to ensure that Justice Alito will recuse himself in any future cases concerning legislation that regulates the Court,” as well as in the tax case involving Rivkin.
In the interview, Alito said that he “marvel[ed] at all the nonsense that has been written about me in the last year.”
He brought up “the traditional idea about how judges and justices should behave is they should be mute,” and said the expectation that the “organized bar” would defend them was not happening.
“And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself,” Alito said.
This story has been updated with additional reaction.
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