October 10, 2023

Whitehouse Sends Chief Justice Roberts Addendum to Justice Alito Ethics Complaint

Enclosure includes letter from billionaire’s lawyer citing Justice Alito’s public comments as justification for stonewalling congressional oversight request

Washington, DC – U.S. Senator Sheldon Whitehouse (D-RI), Chairman of the Senate Judiciary Courts Subcommittee, has written to Chief Justice John Roberts to provide an addendum to the ethics complaint Whitehouse lodged last month against Supreme Court Justice Samuel Alito.  The September complaint detailed how Justice Alito’s comments on the Wall Street Journal editorial page violated several canons of judicial ethics.  In the new message to Chief Justice Roberts, Whitehouse enclosed a letter from a billionaire’s lawyer citing Justice Alito’s comments as justification for declining to substantively respond to congressional oversight requests.

“The dangerous possible scenario here is that an attorney in an ongoing legal dispute over Congress’s prerogative to investigate was able to recruit a Supreme Court justice to provide a favorable advisory opinion for use in that ongoing legal dispute.  We face the aggravating factors that (a) the attorney’s client in the dispute is a personal friend of the justice, and (b) the dispute in question is over congressional investigation of substantial undisclosed gifts to that justice.  The new development about which I write is that an attorney for a different party, in that same dispute over Congress’s investigative powers regarding undisclosed gifts to justices, has now quoted the justice’s out-of-court opinion,” wrote Whitehouse.

The new letter to Chief Justice Roberts, including the enclosure from the lawyer representing billionaire David Sokol, is available here.

The correspondence from Sokol’s counsel was sent in response to a recent request from Senate Judiciary Committee Chair Dick Durbin (D-IL) and Whitehouse as part of an ongoing oversight investigation.  Sokol’s lawyer claims, “We can discern no plausible connection between an enumerated power and imposing an ethics code on the Supreme Court. . . . Indeed, as the Committee certainly knows, Justice Samuel Alito recently made this same point: ‘No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court – period.’”

Congress has a 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, which the justices are subject to, and created through statute the Judicial Conference, which administers that law.

Whitehouse filed a formal complaint with Chief Justice Roberts last month in response to Justice Alito’s public comments opining on the constitutionality of Whitehouse’s Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which would reform the Court’s lax ethics rules.  The SCERT Act passed the Senate Judiciary Committee in July.  Justice Alito’s comments followed revelations that he accepted but did not disclose gifts of luxury travel and exclusive lodging from right-wing billionaires, one with business before Supreme Court.

Days after the Senate Judiciary Committee passed Whitehouse’s SCERT Act, Justice Alito, in an unusual 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.”  The interview was published as an op-ed on the Wall Street Journal editorial page.  Leo and three different right-wing billionaires’ lawyers have objected to congressional inquiries into their undisclosed gifts to right-wing justices, citing the same theory Justice Alito offered in his Wall Street Journal editorial page interview.

Whitehouse sent the September complaint in the form of 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 the letter be used to forge a proper complaint procedure that meets the due process fundamentals of fair fact-finding and independent decision-making.

ProPublica reporting in August revealed that Justice Clarence Thomas failed to disclose lavish gifts from billionaire benefactors, including oil baron Paul Novelly and Sokol, a former top executive at Berkshire Hathaway.  According to the report, Justice Clarence Thomas accepted but did not disclose free travel on private jets, helicopters, and yachts; lodging at commercial properties; and exclusive tickets and passes to high-profile sporting events.  Whitehouse and Durbin wrote to Novelly and Sokol requesting an itemized list of gifts given to any Justice of the Supreme Court or a Justice’s family member.

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.  Justice Alito’s luxury vacation was organized by Leo, and the lodging was provided by billionaire Robin Arkley II, who funded the launch of Leo’s primary advocacy group in the Court capture effort, the Judicial Crisis Network.  Justice Alito did not disclose the gifts on his annual financial disclosure report, as required by federal law.

Meaghan McCabe, (202) 224-2921

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Meaghan McCabe, (202) 224-2921