Amid rumbling scandal over gifts given to conservative justices by wealthy rightwing donors, one such justice, Samuel Alito, became the subject of an ethics complaint filed by a senior Democrat on the Senate judiciary committee.
Senator Sheldon Whitehouse of Rhode Island said recent public comments by Alito “appear to violate several canons of judicial ethics, including standards the supreme court has long applied to itself”.
Whitehouse lodged the complaint in a letter to the chief justice, John Roberts.
Alito is an acerbic voice in the conservative bloc that dominates the court, counting Roberts among its members. Earlier this year, Alito was the subject of a report by ProPublica detailing an undeclared fishing holiday with the billionaire Paul Singer.
Another conservative justice, Clarence Thomas, has been the subject of multiple reports about undeclared gifts, by ProPublica and other outlets. Both justices deny wrongdoing but Alito has been much more assertive in hitting back at critics.
To Roberts, Whitehouse wrote: “The Wall Street Journal on 28 July 2023 published an interview with Justice Alito conducted by David Rivkin and James Taranto. Justice Alito’s comments during that interview give rise to this complaint.”
The interview was headlined “Samuel Alito, the Supreme Court’s Plain-Spoken Defender”.
Whitehouse continued: “The interview had the effect, and seemed intended, to bear both on legislation I authored and on investigations in which I participate. During the interview, Justice Alito stated that ‘no provision in the constitution gives [Congress] the authority to regulate the supreme court – period’.
“Justice Alito’s comments appeared in connection to my Supreme Court Ethics, Recusal, and Transparency Act, which the Senate judiciary committee had advanced just one week before … that bill would update judicial ethics laws to ensure the supreme court complies with ethical standards at least as demanding as in other branches of government.”
Like most attempts to rein in the supreme court, including calls for justices to resign or be impeached and removed, Whitehouse’s bill has little chance of succeeding, given Republican opposition.
Whitehouse said he was bringing the complaint as the only senator who was part of the majorities on the judiciary and finance committees, both of which have tried to investigate supreme court ethics, arising from reporting about Alito and Thomas.
Roberts, however, has rejected calls to testify on the subject.
Whitehouse also said Alito, in his Wall Street Journal interview, “expressed an opinion on a matter that could well come before the court”, something nominees to the court, including Alito, Thomas and other current conservative justices, have long said they will not and should not do.
Whitehouse contended that Alito was therefore in breach of the code of conduct for US federal judges, to which supreme court justices are notionally subject. In practice, however, supreme court justices in effect govern themselves, frustrating calls for Alito and Thomas to face action over links with figures potentially with political motives and/or business before the court.
Whitehouse said Alito had made matters worse by intruding into a specific matter.
“As the author of the bill in question and as a participant in the related investigations,” Whitehouse wrote, “I feel acutely the targeting of this work by Justice Alito, and consider it more than just misguided or accidental general opining. It is directed to my work.”
Whitehouse also pointed to links between David Rivkin, an attorney and one of Alito’s interviewers in the Journal, and Leonard Leo, the rightwing mega-donor whose ties to Thomas and Alito – Leo was on the Alaska fishing trip with Paul Singer examined by ProPublica – have attracted widespread attention, particularly given Leo’s role in tilting the court to the right.
Whitehouse continued: “The final unpleasant fact in this affair is that Justice Alito’s opining, apparently at the behest of his friend and ally’s lawyer, props up an argument being used to block inquiry into undisclosed gifts and travel received by Justice Alito.
“At the end, Justice Alito is the beneficiary of his own improper opining. This implicates [legal] strictures against improperly using one’s office to further a personal interest: a justice obstructing a congressional investigation that implicates his own conduct.”
In conclusion, Whitehouse told Roberts: “As you have repeatedly emphasised, the supreme court should not be helpless when it comes to policing its own members’ ethical obligations.
“But it is necessarily helpless if there is no process of fair fact-finding, nor independent decision-making. I request that you as chief justice … take whatever steps are necessary to investigate this affair and provide the public with prompt and trustworthy answers.”
Leslie Levin, a law professor at the University of Connecticut, said the senator had “opened Pandora’s box with little obvious upside … we can expect a stream of complaints against all the supreme court justices”.
In a statement to the Guardian, Kyle Herrig, senior adviser to the watchdog group Accountable.US, said Roberts “sat back and watched while the supreme court corruption crisis reached a fever pitch, causing public trust in his court to plummet” and “continues to dodge all responsibility”.
“Thankfully, Senator Whitehouse recognises the urgency of the situation at hand. It’s far past time for Chief Justice Roberts to clean up his court.”
The supreme court did not immediately comment.
