September 27, 2023

The Speech 24: The Alito Complaint

Mr. President, last week, I spoke about the scheme of corruption by rightwing billionaires out to capture the Supreme Court. I mentioned their lawyers’ blockade of our investigation into this corruption and described how little sense their lawyers’ arguments made. That brings us to this speech today. The connection is that those, in my view, nonsense lawyers’ arguments badly needed propping up. And who should come to the rescue but U.S. Supreme Court Justice Sam Alito. Alito’s actions propping up that argument caused me to write this ethics complaint against him. I ask unanimous consent to have printed in the RECORD my full letter to Chief Justice Roberts and a portion of the letter from Mr. Rivkin at the end of my remarks.

Mr. President, this complaint highlights some of the Supreme Court’s current legitimacy problems, which are legion. One is that the Court has no procedure for an ethics complaint. I had to write to Chief Justice Roberts, both in his capacity as Chief Justice and in his capacity as Chair of the Judicial Conference, because, unlike in every other Federal court, there is no clarity about process. The Supreme Court has no formal process for receiving or investigating such complaints, so they go there to die. Complaints about Supreme Court Justices have sometimes been referred to the Judicial Conference, and there, they have mostly disappeared. So it is a mess. The Supreme Court—the body with the highest responsibility to police proper procedure and fair factfinding throughout the rest of government— has no clear and proper procedure for itself. That is weird, and that is wrong.

Nothing prohibits the Court or the Judicial Conference from adopting procedures to address complaints of misconduct by the Justices. They just haven’t bothered to. The most basic modicum of any due process is fair factfinding, but they have no process at all to find out even what the facts are. That is simply not defensible.

That has to change, and my complaint presents the Court and the conference that opportunity.

Now let’s move from procedure to the substance of my complaint about Justice Alito. At one level, it is an obvious slam-dunk ethics violation. At another, it will take a lot more digging. Let me explain.

My complaint relates to a so-called ‘‘interview’’ published on the Wall Street Journal’s editorial page July 28 of this year. How it is both an interview and on the Wall Street Journal’s editorial page, I am not going to explore. Justice Alito was the person ‘‘interviewed.’’ His ‘‘interviewers’’ were David Rivkin and James Taranto. In this interview, Justice Alito offered his legal opinion that ‘‘[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.’’ That is the end of his quote. That comment wasn’t just floating in the ether; it was related to my Supreme Court ethics bill, the Supreme Court Ethics, Recusal, and Transparency Act, which the Senate Judiciary Committee had advanced just 1 week before, and it also related to an array of congressional oversight information requests from the Senate Judiciary Committee and from the Senate Finance Committee. More on that later.

Back to the slamdunk part. I sit on the Senate Judiciary Committee, where we hear in every Supreme Court confirmation hearing that it would be improper, that it would be wrong even in a confirmation hearing to express opinions on matters that might come before the Court. Well, obviously, Alito’s interview comments—his Wall Street Journal editorial page ‘‘opining’’—touched on a matter that might come before the Court.

That is the slam dunk. Look at what other Justices have testified about this opining problem, but let’s start with Alito himself, who testified in his confirmation hearing that it would be ‘‘improper’’ and a ‘‘disservice to the judicial process’’ for a Supreme Court nominee to comment on issues that might come before the Court. His words.

Consider also Justice Thomas, who testified that such opining would ‘‘leave the impression that I prejudged this issue,’’ which would be, he said, ‘‘inappropriate for any judge who is worth his or her salt.’’ Justice Kagan told 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.’’

Justice Kavanaugh testified that nominees ‘‘cannot discuss cases or issues that might come before them.’’ He went on that prejudging an issue in this manner is ‘‘inconsistent with judicial independence, rooted in Article III.’’ He continued that ‘‘litigants who come before [the Court] have to know we have an open mind, that we do not have a closed mind.’’ He quoted Justice Ginsburg: ‘‘No hints, no forecasts, no previews.’’ Justice Gorsuch went one better in his confirmation hearing. He actually testified that this ‘‘no opining’’ rule applies to discussions about Supreme Court ethics—the exact topic of Justice Alito’s Wall Street Journal opining.

Senator BLUMENTHAL on the committee had asked Judge Gorsuch about proposed ethics rules for the Supreme Court and whether they would violate separation of powers. Gorsuch answered: 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.

In sum, the Court itself is plainly on record that this sort of opining is wrong. So that is broken rule one, just offering the opinion, but it gets worse.

This was not just general opining out into the general ether. Alito’s comments referred to a specific, ongoing legal dispute. Let me explain. There are ongoing Senate investigations into the scandal of secret billionaire gifts to certain Justices. The Senate Judiciary Committee is investigating reports that Supreme Court Justices accepted and improperly failed to disclose, in violation of Congress’s disclosure laws, lavish gifts from billionaire benefactors seeking to influence the Court. The Senate Finance Committee is investigating Federal tax compliance regarding those undisclosed gifts. Were tax laws broken? Were proper declarations made?

In those congressional investigations, requests for information have been sent out. In response to those requests, objections have been raised. Here is where Alito comes in. The objections by the billionaires’ lawyers assert that Congress has no constitutional authority to legislate in this area—hence, no authority to investigate. They assert—in my view, plainly wrongly—that our constitutional separation of powers blocks any congressional action in this area, which in turn, they assert—also plainly wrongly, in my view—blocks any congressional investigation. Set aside the demerits of that argument—for which I refer you to the lawyers’ letters I added to the record in my previous speech and my own takedown of that argument—sound or unsound, the point is, it is their argument in that ongoing dispute.

In that ongoing dispute, Justice Alito’s Wall Street Journal comments prop up that argument. The language is nearly identical. You can compare it for yourself.

In fact, lawyers for some of the billionaires to whom we have sent information requests have actually quoted Justice Alito’s comment in declining to respond. So this is not just some improper general opining; it is a Supreme Court Justice leaning in to one side of a specific ongoing dispute and being used and quoted by one side of a specific ongoing dispute. That is pretty bad. It gets worse.

One of the interviewers in that Wall Street Journal interview, Attorney David Rivkin, wasn’t just some interviewer; he is the attorney for a party in that specific ongoing dispute. Rivkin is the attorney making the precise legal argument that Alito echoed, and he is making it in that ongoing dispute. None of this, of course, was disclosed in the so-called ‘‘interview.’’ A logical mind would rightfully ask whether Justice Alito opined on this matter at the behest of his interviewer, Attorney Rivkin. A suspicious mind would even wonder whether Attorney Rivkin prepped his witness, as lawyers are wont to do. With no means of factfinding, all this remains unknown.

Bad enough to opine on some general matter that may come before the Court; worse when the opining brings a Supreme Court Justice’s influence to bear in a specific ongoing legal dispute; and worse yet when the influence of the Justice might have been summoned by counsel to a party in that dispute.

The timeline is suspicious. Mr. Rivkin’s interview with Justice Alito was reportedly conducted in early July 2023. Well, on July 11, Chairman DURBIN and I had sent a letter to Rivkin’s client in that dispute inquiring about undisclosed gifts and travel provided to Justices. On July 20, the Senate Judiciary Committee voted to advance my judicial ethics bill. By the way, the Rivkin-Alito Congress-has-no-authority argument fared very poorly that day in the committee. On July 25, Mr. Rivkin, by letter, refused to answer our information requests on the purported ground that ‘‘any attempt by Congress to enact ethics standards for the Supreme Court would falter on constitutional objections.’’ Three days later, on July 28, comes the supportive opining from Justice Alito about those constitutional objections. There are a lot of questions that need answering under oath about how this mess played out.

But wait, there is more. Attorney Rivkin’s client in that dispute has a relationship with Justice Alito. He is a friend and ally of Justice Alito’s. Rivkin’s client is Leonard Leo. Leo is not just a friend and ally of Alito’s. Our oversight questions that Attorney Rivkin is blocking relate to Mr. Leo’s actions to facilitate gifts for Supreme Court Justices from rightwing billionaires of free and undisclosed transportation and lodging. Mr. Leo didn’t just facilitate; he was Justice Alito’s companion on the luxurious Alaskan fishing trip in 2008 that rightwing billionaires funded. The relationship goes back. 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.’’

So it appears that Justice Alito, A, improperly opined in the Wall Street Journal, B, to influence a specific ongoing dispute, C, possibly at the behest of counsel in that dispute, and D, to the benefit of a personal friend and ally.

None of that was disclosed in the interview either, and it brings us to the last and most damning point. Justice Alito’s opining, potentially 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 himself. Justice Alito himself is the ultimate beneficiary of his own improper opining. It comes full circle.

In the worst-case scenario, Justice Alito broke the rules against opining in order to facilitate an organized campaign to obstruct congressional investigation into tens of thousands of dollars in gifts he, Alito, personally received and doesn’t want investigated. Whether Justice Alito was unwittingly used to provide fodder for such interference or intentionally participated in that interference plan and whether he did it to protect the rightwing billionaires or himself or both, those are questions whose answers require 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 factfinding. The obstruction of our inquiries by Mr. Rivkin and Mr. Leo, fueled by Justice Alito’s opining, prevents Congress from gathering those facts, and the Supreme Court won’t even look. That can’t be— not in a nation of laws. That is flagrantly, obviously wrong. So I have asked the Chief Justice or the Judicial Conference to take whatever steps are necessary to develop a process to investigate this affair and provide the public with the prompt and trustworthy answers it deserves. The Supreme Court’s legitimacy cannot stand on an edifice of obstruction, secrecy, and lies.

To be continued, Mr. President.