September 5, 2023

Whitehouse Lodges Ethics Complaint Against Supreme Court Justice Samuel Alito

Complaint follows Justice Alito’s improper public criticism of Whitehouse’s comprehensive Supreme Court ethics reform legislation. Whitehouse wrote directly to Chief Justice Roberts due to SCOTUS’s lack of formal process for receiving or investigating ethics complaints.

Washington, D.C. – U.S. Senator Sheldon Whitehouse (D-RI), Chairman of the Senate Judiciary Courts Subcommittee, today wrote a letter Chief Justice John Roberts to lodge an ethics complaint against Supreme Court Justice Samuel Alito for violating several canons of judicial ethics. 

Whitehouse’s formal complaint follows revelations that Justice Alito accepted but did not disclose gifts of luxury travel and exclusive lodging from right-wing billionaires, one with business before the Court.  Justice Alito then made public comments opining on the constitutionality of Whitehouse’s Supreme Court Ethics, Recusal, and Transparency legislation to reform the Court’s lax ethics regime, which passed the Senate Judiciary Committee in July.  Justice Alito’s comments also implicated ongoing Senate investigations into Justice Alito’s undisclosed gifts.

“In the worst case facts may reveal, Justice Alito was involved in an organized campaign to block congressional action with regard to a matter in which he has a personal stake.  Whether Justice Alito was unwittingly used to provide fodder for such interference, or intentionally participated, is a question whose answer requires additional facts,” wrote Senator Whitehouse to Chief Justice Roberts.

“As you have repeatedly emphasized, 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,” continued Whitehouse.

“I request that you as Chief Justice, or through the Judicial Conference, take whatever steps are necessary to investigate this affair and provide the public with prompt and trustworthy answers,” concluded Whitehouse.

Whitehouse’s ethics complaint lays out five ways in which Justice Alito appears to have violated the canons of judicial ethics and the Supreme Court’s Statement of Ethics Principles and Practice, to which all sitting justices claimed to subscribe:

  1. Improper Opining on a Legal Issue that May Come Before the Court;
  2. Improper Intrusion into a Specific Matter;
  3. Improper Intrusion into a Specific Matter at the Behest of Counsel in that Matter;
  4. Improper Intrusion into a Specific Matter Involving an Undisclosed Personal Relationship; and
  5. Improper Use of Judicial Office for Personal Benefit.

  

Reporting from ProPublica in June 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.

Whitehouse and Senate Judiciary Committee Chairman Dick Durbin (D-IL) wrote to Leo, Singer, and Arkley in July seeking to identify the full extent of payments or gifts of travel and lodging given to Supreme Court justices.  Leo, through his lawyer David Rivkin, rejected the Committee’s request for information, arguing that “the inquiry exceeds the limits placed by the Constitution on the Committee’s investigative authority.”

Days after the Senate Judiciary Committee passed Whitehouse’s Supreme Court Ethics, Recusal, and Transparency Act, Justice Alito, in a bizarre interview with Leonard Leo’s lawyer David Rivkin, stated: “I know this is a controversial view, but I’m willing to say it.  No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”  Justice Alito’s comments to Rivkin track closely to what Rivkin argued to the Committee on Leo’s behalf.

Judiciary Committee Democrats wrote a letter the following week asking the Chief Justice to take appropriate steps to ensure that Justice Alito will recuse himself in any future cases concerning legislation that regulates the Court. 

Whitehouse lodged today’s formal complaint as the author of the legislation at issue, and as the only Senator serving in the majority on both the Senate Finance and Judiciary Committees which are investigating ethical mishaps by Supreme Court justices.  Whitehouse lodged the complaint as a letter to the Chief Justice because, unlike every other federal court, the Supreme Court has no formal process for receiving or investigating such complaints. Whitehouse urged that this complaint be used to forge a proper complaint procedure meeting the due process fundamentals of fair fact-finding and independent decision-making. 

Full text of the ethics complaint is below and a PDF can be found here.

The Honorable John G. Roberts, Jr.

Chief Justice of the United States

Chairman, Judicial Conference of the United States

Supreme Court of the United States

1 First Street NE

Washington, D.C.  20543

Dear Chief Justice/Chairman Roberts:

I write to lodge an ethics complaint regarding recent public comments by Supreme Court Justice Samuel Alito, which appear to violate several canons of judicial ethics, including standards the Supreme Court has long applied to itself.

I write to you in your capacity both as Chief Justice and as Chair of the Judicial Conference because, unlike every other federal court, the Supreme Court has no formal process for receiving or investigating such complaints, and asserted violations by justices of relevant requirements have sometimes been referred to the Judicial Conference and its committees.  I include all justices in carbon copy because I am urging the Supreme Court to adopt a uniform process to address this complaint and others that may arise against any justice in the future.

The recent actions by Justice Alito present an opportunity to determine a mechanism for applying the Judicial Conduct and Disability Act to justices of the Supreme Court.  Nothing prohibits the Court or the Judicial Conference from adopting procedures to address complaints of misconduct.  The most basic modicum of any due process is fair fact-finding; second to that is independent decision-making. 

Background

Some of the background facts here were related by members of the Senate Judiciary Committee who signed a letter to you dated August 3, 2023.[1]  As that letter explains, the Wall Street Journal on July 28, 2023, published an interview with Justice Alito conducted by David Rivkin and James Taranto.  Justice Alito’s comments during that interview give rise this complaint.[2]  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 “[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”[3]  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 the publication of this interview.[4]  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. 

Justice Alito’s comments echoed legal arguments made to block information requests from the Senate Judiciary Committee and the Senate Finance Committee, on both of which I serve.  Those arguments assert (in my view wrongly) that our constitutional separation of powers blocks any congressional action in this area, which in turn is asserted (also wrongly, in my view) to block any congressional investigation.  Sound or unsound, it is their argument against our investigations, as reflected in the letter appended hereto.  The subject of these committee investigations is dozens of unreported gifts donated to justices of the Supreme Court.  

As the author of the bill at issue, and as the only Senator serving in the majority on both investigating committees, I bring this complaint.

Improper Opining on a Legal Issue that May Come Before the Court

On the Senate Judiciary Committee, we have heard in every recent confirmation hearing that it would be improper to express opinions on matters that might come before the Court.  In this instance, Justice Alito expressed an opinion on a matter that could well come before the Court.

That conduct seems indisputably to violate the Code of Conduct for United States Judges.  Canon 1 emphasizes a judge’s obligation to “uphold the integrity and independence of the judiciary”; Canon 2(A) instructs judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”; and Canon 3(A)(6) provides that judges “should not make public comment on the merits of a matter pending or impending in any court.”  These canons help ensure “the integrity and independence of the judiciary” by requiring judges’ conduct to be at all times consistent with the preservation of judicial impartiality and the appearance thereof.[5] 

The Court’s Statement of Ethics Principles and Practices, “to which all of the current members of the Supreme Court subscribe,”[6] concurs.  That document makes clear that, before speaking to the public, “a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public.  There is an appearance of impropriety when an unbiased and reasonable person who is aware of all relevant facts would doubt that the Justice could fairly discharge his or her duties.”[7]  These same precepts are also enforced through the federal recusal statute, which requires all federal justices and judges to recuse themselves from any matter in which their impartiality could reasonably be questioned.[8] 

Making public comments assessing the merits of a legal issue that could come before the Court undoubtedly creates the very appearance of impropriety these rules are meant to protect against.  As Justice Kavanaugh pointed out, prejudging an issue in this manner is “inconsistent with judicial independence, rooted in Article III,” because “litigants who come before [the Court] have to know we have an open mind, that we do not have a closed mind.”[9]

Justice Alito and every other sitting member of the Supreme Court told the Senate Judiciary Committee during their confirmation hearings that it would be (in the words of Justice Alito) “improper” and a “disservice to the judicial process” for a Supreme Court nominee to comment on issues that might come before the Court.[10]  Justice Thomas said that such comments would at minimum “leave the impression that I prejudged this issue,” which would be “inappropriate for any judge who is worth his or her salt.”[11]  Justice Kagan echoed those comments, telling the Committee it would be “inappropriate” for her to “give any indication of how she would rule in a case”—even “in a somewhat veiled manner.”[12]  And Justice Kavanaugh explained that nominees “cannot discuss cases or issues that might come before them.”  He continued:  “As Justice Ginsburg said, no hints, no forecasts, no previews.”[13]  

Justice Gorsuch made clear during his confirmation hearing that this rule applies to the precise topic on which Justice Alito opined to the Wall Street Journal:

Senator Blumenthal.  Thank you.  I also want to raise a question, talking about court procedure, relating to conflicts of interest and ethics.  I think you were asked yesterday about the proposed ethics rules that have been applied to your court—

Judge Gorsuch.  Yes.

Senator Blumenthal:  [continuing].  To the appellate court, to the District Court, but not to the Supreme Court.  Would you view such legislation as a violation of the separation of powers?

Judge Gorsuch.  Senator, I am afraid I just have to respectfully decline to comment on that because I am afraid that could be a case or controversy, and you can see how it might be.  I can understand Congress’ concern and interest in this area.  I understand that.  But I think the proper way to test that question is the prescribed process of legislation and litigation.[14]

You, Justice Sotomayor, and Justice Barrett each expressly cited the canons of judicial ethics as the source of a nominee’s obligation to refuse to comment on such matters.[15]  There seems to be no question that Justice Alito is bound by, and that his opining violated, these principles.[16] 

Improper Intrusion into a Specific Matter

These principles apply broadly to any opining, on any issue that might perhaps come before the Court.  But here it was worse; it was not just general opining, it was opining in relation to a specific ongoing dispute.  The quote at issue in the article—“No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court”—directly follows a mention of my judicial ethics bill.  Justice Alito’s decision to opine publicly on the constitutionality of that bill may well embolden legal challenges to the bill should it become law.  Indeed, his comments encourage challenges to all manner of judicial ethics laws already on the books.

Justice Alito’s opining will also fuel obstruction of our Senate investigations into these matters.  To inform its work on my bill and other judicial ethics legislation, and oversee the performance of the statutory Judicial Conference in this arena, the Senate Judiciary Committee is investigating multiple reports that Supreme Court justices have accepted and failed to disclose lavish gifts from billionaire benefactors.[17]  Separately, the Senate Finance Committee is investigating the federal tax considerations surrounding the billionaires’ undisclosed gifts to Supreme Court justices.[18]  Both committees’ inquiries have been stymied by individuals asserting that Congress has no constitutional authority to legislate in this area, hence no authority to investigate.  Justice Alito’s public comments prop up these theories.[19]

As the author of the bill in question and as a participant in the related investigations, 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.

Improper Intrusion into a Specific Matter at the Behest of Counsel in that Matter

Compounding the issues above, Attorney David Rivkin was one of the interviewers in the Wall Street Journal piece, and also a lawyer in the above dispute.  This dual role suggests that Justice Alito may have opined on this matter at the behest of Mr. Rivkin himself.  Bad enough that a justice opines on some general matter that may come before the Court; worse when the opining brings his influence to bear in a specific ongoing legal dispute; worse still when the influence of a justice appears to have been summoned by counsel to a party in that dispute.

The timeline of the Wall Street Journal interview suggests that its release was coordinated with Mr. Rivkin’s efforts to block our inquiry.  Mr. Rivkin’s interview with Justice Alito was reportedly conducted in “early July” 2023.[20]  On July 11, Senate Judiciary Committee Chair Durbin and I sent a letter to Mr. Rivkin’s client inquiring about undisclosed gifts and travel provided to justices.[21]  On July 20, the Senate Judiciary Committee voted to advance my judicial ethics bill mentioned above.  (Notably, the Rivkin/Alito Congress-has-no-authority argument fared poorly in the committee that day, with no Republican rising to rebut the arguments against it.)  On July 25, Mr. Rivkin by letter refused to provide the requested information on the purported ground that “any attempt by Congress to enact ethics standards for the Supreme Court would falter on constitutional objections.”[22]  That response, appended hereto, was instantly published in Fox News.[23]  Three days later, on July 28, the Wall Street Journal editorial page published the supportive opining from Justice Alito.[24] 

Improper Intrusion into a Specific Matter Involving an Undisclosed Personal Relationship 

On top of all this, the dispute upon which Justice Alito opined involves an individual with whom Justice Alito has a longstanding personal and political relationship.  As my colleagues and I pointed out in our August 3 letter, “Mr. Rivkin is counsel for Leonard Leo with regard to [the Judiciary] Committee’s investigation into Mr. Leo’s actions to facilitate gifts of free transportation and lodging that Justice Alito accepted from Paul Singer and Robin Arkley II in 2008.”[25]  Mr. Leo was Justice Alito’s companion on the luxurious Alaskan fishing trip in 2008 and facilitated the gifts to the justice of free transportation and lodging.  Two years earlier, Mr. Leo’s political organization “had run an advertising campaign supporting Alito in his confirmation fight, and Leo was reportedly part of the team that prepared Alito for his Senate hearings.”[26]

The timing of Justice Alito’s opining suggests that he intervened to give his friend and political ally support in his effort to block congressional inquiries.  It appears that Justice Alito (a) opined (b) on a specific ongoing dispute (c) at the behest of counsel in that dispute (d) to the benefit of a personal friend and ally.  Each is objectionable, and appears to violate, inter alia, Canon 2(B) of the Code of Conduct for United States Judges, which provides, “A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.”

Improper Use of Judicial Office for Personal Benefit 

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 Canon 2(B) strictures against improperly using one’s office to further a personal interest:  a justice obstructing a congressional investigation that implicates his own conduct. 

The Senate Judiciary Committee’s investigation encompasses reports that Justice Alito accepted but did not disclose gifts of travel and lodging valued in the tens of thousands of dollars.  Further investigation may reveal additional information that Justice Alito would prefer not come to light.  The facts as already reported suggest that Justice Alito likely violated the financial disclosure requirements of the Ethics in Government Act.[27]  Perhaps Justice Alito should also have recused himself as required by the recusal statute in a 2014 case involving a company owned by Paul Singer, one of the billionaires who attended and paid for his Alaskan fishing vacation.[28]  Justice Alito’s public suggestion that these laws are unconstitutional as applied to the Supreme Court, and that Congress lacks authority to amend them or investigate their implementation or enforcement, appears designed to impede Senate efforts to investigate these and other potential abuses.

*          *          *

Conclusion

In the worst case facts may reveal, Justice Alito was involved in an organized campaign to block congressional action with regard to a matter in which he has a personal stake.  Whether Justice Alito was unwittingly used to provide fodder for such interference, or intentionally participated, is a question whose answer requires additional facts.  The heart of any due process is a fair determination of the facts.  Uniquely in the whole of government, the Supreme Court has insulated its justices from any semblance of fair fact-finding.  The obstructive campaign run by Mr. Rivkin and Mr. Leo, fueled by Justice Alito’s opining, appears intended to prevent Congress from gathering precisely those facts.

As you have repeatedly emphasized, 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, or through the Judicial Conference, take whatever steps are necessary to investigate this affair and provide the public with prompt and trustworthy answers.

Meaghan McCabe, (202) 224-2921

Print 
Share 
Share 
Tweet 

Search