Justice Samuel A. Alito Jr. on Friday dismissed calls from Democratic senators that he recuse himself from an upcoming Supreme Court tax case because one of the attorneys in the matter interviewed the justice twice for articles that appeared on the Wall Street Journal editorial page.
When Washington lawyer David B. Rivkin Jr. co-authored the articles, “he did so as a journalist, not an advocate,” Alito wrote in a statement attached to a routine orders list issued by the court Friday.
“The case in which he is involved was never mentioned; nor did we discuss any issue in that case either directly or indirectly. His involvement in the case was disclosed in the second article, and therefore readers could take that into account.”
Senate Judiciary Committee Chair Richard J. Durbin (D-Ill.) and other Democrats on the committee wrote to Chief Justice John G. Roberts Jr. last month saying that Alito had crossed an ethical line in giving two interviews to Rivkin and Journal editorial page features editor James Taranto while Rivkin at the same time is representing a couple seeking Supreme Court review of a tax case. The court said in June — before one of the interviews — that it would hear the case in the term that begins in October.
Durbin said Friday afternoon that Alito’s refusal to recuse adds to a “crisis of [the court’s] own making,” adding that Roberts’s “failure to act remains untenable.”
Alito “surprises no one by sitting on a case involving a lawyer who honored him with a puff piece in the Wall Street Journal,” Durbin said in a statement. “Why do these Justices continue to take a wrecking ball to the reputation of the highest court in the land?”
Justices do not routinely sit for newspaper interviews. But Alito has made the Wall Street Journal editorial page his preferred venue for public communication: disputing a ProPublica piece about an Alaskan fishing trip he took that was paid for by a wealthy benefactor and then defending himself in the interviews with Taranto and Rivkin, an attorney prominent in conservative legal circles.
In the most recent article, Alito said he expected the organized legal community to speak out for him and other justices. “But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”
The letter to Roberts from the Democratic senators said that Rivkin’s “efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties.”
“As you wrote in 2011, ‘[j]udges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic,’ ” the letter said. “Due to the aforementioned violations of the Statement on Ethics, which Justice Alito himself signed, we believe that he has exercised neither. Recusal in these matters is the only reasonable way for Justice Alito to prevent further damage to public confidence in the Court.”
Alito noted in his response Friday that justices make their own decisions about recusal, and the chief justice plays no role. He said justices often participate in cases in which they know the lawyers, and are required to put aside their personal relationships.
“Senator Durbin’s request for my recusal is presumably based on the theory that my vote in [the case] will be affected in some way by the content of the articles that resulted from the interviews, but that theory fundamentally misunderstands the circumstances under which Supreme Court Justices must work,” Alito wrote.
“We have no control over the attorneys whom parties select to represent them, and as a result, we are often presented with cases in which one of the attorneys has spoken favorably or unfavorably about our work or character. Similarly, we regularly receive briefs filed by or on behalf of Members of Congress who have either supported or opposed our confirmations, or who have made either favorable or unfavorable comments about us or our work.”
It is rare for members of Congress and parties in cases to seek a justice’s recusal, and thus rare for a justice to respond in detail. But the lawmakers’ request is representative of the ongoing battle over ethics at the Supreme Court, and tension especially between conservative justices and Senate Democrats.
In one of the Wall Street Journal articles in question, Alito said flatly that Congress had no role to play in prescribing an ethics code specific to the high court.
“I know this is a controversial view, but I’m willing to say it,” Alito said. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Durbin cited those remarks in his letter to Roberts, saying Alito inappropriately commented on pending legislation and should recuse himself in the tax case, Moore v. United States.
Alito on Friday supplied a list of interviews other justices have conducted with media outlets that, at the time, had interests before the court. But those interviews were by journalists employed by the media outlets, and the interviewers were not parties to the legal interests being asserted at the Supreme Court.
In addition, Alito’s statement said some of his fellow justices “have been interviewed by attorneys who have also practiced in this Court, and some have co-authored books with such attorneys.” He mentioned his colleague Justice Neil M. Gorsuch. “Those interviews did not result in or require recusal,” Alito wrote.
Gorsuch’s 2019 book, “A Republic If You Can Keep It,” says on the cover that it was written “with” Jane Nitze and David Feder, two former law clerks. Alito’s statement on Friday said Feder filed an amicus brief in supporting the petitioner in a case in 2021. But Feder’s client was not a party to the case, and the court denied the request without comment.