In a biting letter dated Labor Day, Sen. Sheldon Whitehouse (D-R.I.) lodged an ethics complaint against Supreme Court Justice Samuel Alito and implored Chief Justice John Roberts to “adopt a uniform process to address this complaint and others that may arise against any justice in the future.”
The letter came precisely one month after a coalition of 10 Democratic senators, Whitehouse among them, wrote to Roberts with similar concerns about Alito and the high court’s ethics.
Whitehouse’s new complaint stemmed from an interview Alito gave to attorney David Rivkin and Wall Street Journal editor James Taranto for a July 28 opinion piece published in the conservative newspaper.
Despite its title, “Samuel Alito, the Supreme Court’s Plain-Spoken Defender,” the piece primarily defends Alito himself. It discounts the court’s recent “‘ethics’ scandals” (scare quotes by Rivkin and Taranto) and labels a damning ProPublica investigation of Justice Clarence Thomas a mere “hit piece.”
Over the last year, reporting by ProPublica, The New York Times and other outlets has spotlight the way certain justices have accepted hundreds of thousands of dollars’ worth of luxury vacations, tuition payments and other gifts while on the bench. One such report detailed a luxurious Alaska fishing trip Alito took with billionaire Paul Singer in 2008.
While Whitehouse addressed his letter to Roberts, he copied it to all nine justices on the bench.
The senator took issue with one particular passage from the Wall Street Journal piece in which Alito is quoted saying, “Congress did not create the Supreme Court .... No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
This summer, in response to mounting public distrust of the Supreme Court, the Senate Judiciary Committee sought to impart a fresh set of ethics regulations on the high court’s justices. An ethics bill passed the committee on July 20, although it faces stiff odds for full passage.
The Senate Finance Committee has also been looking into the financial ties between Supreme Court justices and various powerful business interests.
In his letter, Whitehouse argued that Alito’s comments to The Wall Street Journal “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,” he wrote.
The August letter to Roberts sent by the coalition of senators also referenced Alito’s defiant Wall Street Journal quote. The group asked Roberts to ensure that Alito recuses himself from any matter relating to Supreme Court ethics that comes before the court.
Whitehouse also suggested Alito stood improperly to gain from the Wall Street Journal piece, which does not come down in support of increased transparency on the court.
“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,” Whitehouse wrote.
In addition to writing for The Wall Street Journal, Rivkin is a lawyer for Leonard Leo, the former Federalist Society chief whose links to conservative billionaires and justices like Thomas has made him a target of the Senate Finance Committee’s probe.
Whitehouse argued the timing of the piece was suspicious and suggested “coordination with Mr. Rivkin’s efforts to block our inquiry.”
“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,” Whitehouse said, concluding by asking Roberts to “take whatever steps are necessary to investigate this affair and provide the public with prompt and trustworthy answers.”
Roberts has signaled he may be open to adjustments to the Supreme Court’s status quo on ethics standards but has resisted any concrete commitments.
In April, Roberts rejected a request from Senate Judiciary Committee chair Dick Durbin (D-Ill.) to appear before the committee to answer questions.