Sen. Sheldon Whitehouse of Rhode Island lodged a formal complaint against Supreme Court Justice Samuel Alito on Monday, urging Chief Justice John Roberts to investigate Alito for “violating several canons of judicial ethics.” The complaint stems from Alito’s highly political and unprecedented public relations campaign against Senate Democrats’ efforts on a bill that requires the court adopt a code of ethics since the justices refuse to do it voluntarily.
In July, Alito was interviewed by the Wall Street Journal, following the passage of Supreme Court Ethics, Recusal, and Transparency Act in the Senate Judiciary Committee. In the interview, Alito declared that Supreme Court justices are, basically, above the law. “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”
That statement is count No. 1 in Whitehouse’s complaint: “Improper Opining on a Legal Issue that May Come Before the Court.” Whitehouse explains in his seven-page letter to Roberts, “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 “seems indisputably to violate the Code of Conduct for United States Judges,” he wrote.
Related to that is count No. 2 of Whitehouse’s complaint: Alito’s “Improper Intrusion into a Specific Matter.” The specific matter is the ethics legislation as well as ongoing Senate investigations regarding Supreme Court ethics, or rather the lack thereof. Alito is essentially inviting allies to challenge the legislation should it ever pass, Whitehouse asserts, adding that Alito’s “comments encourage challenges to all manner of judicial ethics laws already on the books.”
Not only is Alito improperly intruding into the work of the Senate, Whitehouse says in count No. 3, he’s doing it “at the Behest of Counsel in that Matter.” That counsel is attorney David B. Rivkin, a prominent Federalist Society member and regular contributor to the WSJ. (In fact, Rivkin was one of the interviewers in the Journal’s article on Alito.) Rivkin has been the attorney battling the Senate Democrats on both the Finance and Judiciary Committee’s efforts to investigate the numerous apparent ethics violations by justices that have emerged since ProPublica’s first blockbuster story about the lavish trips and gifts Justice Clarence Thomas received from billionaire megadonor Harlan Crow.
“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,” Whitehouse wrote in his letter to Roberts.
That leads to count No. 4 against Alito: He’s improperly opining and intruding on this matter when he has a undisclosed “longstanding personal and political relationship” with a person involved in the dispute over the legislation and investigations: Leonard Leo, the Federalist Society co-chair who is reportedly under investigation by the Washington, D.C., attorney general, has been the driving force behind the conservative takeover of the federal judiciary and Supreme Court. Leo has been a booster for Alito since his nomination fight in 2005, Whitehouse points out.
Leo was also “Alito’s companion on the luxurious Alaskan fishing trip in 2008 and facilitated the gifts to the justice of free transportation and lodging.” That’s in reference to another ProPublica exposé about Alito having been wined and dined on an exclusive, luxurious fishing trip paid for by a hedge fund manager who just happened to have business before the court. Alito didn’t list that trip in his financial disclosure, nor did he recuse himself from the case.
Which leads to the final count in Whitehouse’s complaint: Alito is using his judicial office for “personal benefit,” attempting to interfere with the Senate’s probe into “undisclosed gifts and travel received by Justice Alito,” and further investigations that “may reveal additional information that Justice Alito would prefer not come to light.”
So, to sum up, Alito appears to be involved in a political effort orchestrated by Leo to stonewall further probes into his own conduct, investigations that could potentially reveal just how extensive a web Leo has created in the court with his billions in dark money. Either Alito is using Rivkin and Leo to protect himself, or he is being used by them to protect the whole network of malign influence on the court. That’s something Roberts should be intent on finding out.
Right now, Roberts is the only one who can do anything about it. The Supreme Court is exempt from all of the rules the rest of the federal judiciary is bound by. Roberts is the only and final authority on justices’ conduct. He has refused to engage with the Senate on the issue and has insisted that the court—meaning him—can and will handle it without any interference from what he clearly believes is a lesser branch. This official complaint from Whitehouse is a challenge to Roberts to do just that.
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