June 10, 2024

Following Justice Alito’s Refusal to Recuse from January 6th-related Cases, Whitehouse Requests Information Regarding Alito’s Improper Wall Street Journal Interview

Washington, DC – U.S. Senator Sheldon Whitehouse (D-RI), Chair of the Judiciary Subcommittee on Federal Courts, sent a letter to Justice Samuel Alito requesting information regarding Justice Alito’s improper comments about Congress’s ability to regulate Supreme Court ethics during a Wall Street Journal editorial page interview last year.  This follows Justice Alito’s letter addressed to Whitehouse and Senate Majority Whip Dick Durbin (D-IL), in which Justice Alito refused to recuse from cases related to the January 6th insurrection, despite the display of MAGA battle flags at two of his homes. 

“Given your informative response to the letter I sent with Chairman Durbin on May 23, 2024, I wonder if you might be able to provide some information regarding your interview that appeared in the Wall Street Journal’s editorial page on July 28, 2023.  In that interview, you opined on questions related to Congress’s authority over judicial, and more specifically Supreme Court, ethics concerns. The interview raised several problems,” wrote Whitehouse.

“It thus appears that you offered an improper opinion regarding a question that might come before the Court; did so in the context of a known ongoing legal dispute involving that precise question; did so at the behest of an interviewer who as a lawyer represented a client in that ongoing dispute; and did so to the benefit of his client, your personal friend, and to the benefit of yourself, as a recipient of undisclosed gifts that are the subject of our investigation. […] I note that the Supreme Court is the only place in all of government where issues of this nature have no place or means of investigation or resolution. […] So far, my questions regarding these events seem to have disappeared into a black hole of indifference,” concluded Whitehouse.

Following Justice Alito’s Wall Street Journal op-ed, Whitehouse wrote a letter Chief Justice Roberts to lodge an ethics complaint against Justice Alito for violating several canons of judicial ethics, which Chief Justice Roberts never responded to.  Whitehouse later submitted a follow-up complaint noting that attorneys for one benefactor who gave undisclosed gifts to Supreme Court justices cited Justice Alito’s comments as justification for refusing to cooperate with the Senate Judiciary Committee’s investigation into those gifts.

Last June, reporting from ProPublica found that Justice Alito accepted private jet travel to an all-expenses-paid Alaskan fishing vacation from hedge fund billionaire Paul Singer.  Singer, who has contributed over $80 million to Republican political organizations, subsequently had business before the Court.  Alito’s luxury vacation was organized by Leonard Leo, the engineer for a cadre of right-wing billionaires of the current right-wing Supreme Court supermajority.  Alito’s lodging on the vacation was provided by the billionaire Robin Arkley II, who funded the launch of Leo’s primary advocacy group in the Court-capture effort, the “Judicial Crisis Network.”  Alito did not disclose these gifts on his annual financial disclosure report, as required by federal law.

Justice Alito preemptively responded to ProPublica’s reporting in an unusual, defensive op-ed in the Wall Street Journal before ProPublica published its findings.  In the op-ed, Alito argued that a private jet should be considered a “facility” and that a seat on a private plane that would otherwise be empty is fair to accept without reporting on financial disclosure filings. 

Congress has an appropriate and well-established role in oversight of the judiciary and updating ethics laws that apply to federal officials, including justices and judges.  Congress passed the Ethics in Government Act and judicial recusal law, which expressly apply to the justices.  Congress also created through statute the Judicial Conference, which administers financial disclosure laws for the entire judiciary.

Whitehouse’s Supreme Court Ethics, Recusal, and Transparency (SCERT) Act was advanced by the Senate Judiciary Committee last July.  The bill would require Supreme Court justices to adopt a binding code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, end the practice of justices ruling on their own conflicts of interests, and require justices to explain their recusal decisions to the public. 

Whitehouse’s letter to Justice Alito can be found here.

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