Justice Samuel Alito rejected a request on Friday by Sen. Dick Durbin (D-IL) to recuse from a Supreme Court tax case after the conservative justice sat down for a pair of interviews with an attorney involved in the case.
Durbin and other Democrats had said Alito should not participate in the case Moore v. United States after the Wall Street Journal opinion section released two interviews featuring the Republican-appointed justice, who is considered among the court’s most conservative members.
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“Because this case is scheduled to be heard soon, and because of the attention my planned participation in this case has already received, I respond to these concerns now,” Alito wrote in a four-page statement that was attached to the high court’s orders list. “There is no valid reason for my recusal in this case,” Alito added.
The crux of the Democratic lawmakers’ Aug. 4 complaint letter against Alito is that the justice had tainted his ability to weigh the case fairly because he sat down for hours during his Wall Street Journal interview with David Rivkin, who represents a couple suing over a tax bill.
Rivkin also represents Leonard Leo, a onetime leader of the group the Federalist Society, which helped former President Donald Trump procure a short list of high court nominees during his four-year term, in which Trump was able to cement the 6-3 Republican-appointed majority of justices.
In a second article the interviews with Rivkin produced, Alito argued that Congress lacks the authority to impose a code of ethics on the Supreme Court. That claim prompted a recent complaint sent to Chief Justice John Roberts by Sen. Sheldon Whitehouse (D-RI), who has proposed a bill to impose a specific code of ethics on the justices that faces steep odds of passing the Senate and the House.
Alito’s statement marks a rare occurrence of responding to calls for recusals from outside parties, as typically, those calls only gain responses when made by parties within the case.
The justice wrote that many of his former and current colleagues have provided interviews to reporters and subsequently taken part in cases involving those reporters’ news outlets.
“When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate,” Alito said, making the argument that Durbin and other Democrats’ calls were “unsound.”
“The case in which [Rivkin] 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,” Alito added.
Alito’s comments come one day after Justice Brett Kavanaugh, a Trump appointee, said he was “hopeful” without offering specifics that the high court could soon take “concrete steps” to address “perceived ethics issues.”
Durbin said in a statement that Alito “surprises no one by sitting on a case involving a lawyer who honored him with a puff piece in the Wall Street Journal,” asking, “Why do these justices continue to take a wrecking ball to the reputation of the highest court in the land?”
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The Democratic senator noted that Whitehouse’s Supreme Court Ethics, Recusal, and Transparency Act recently advanced in the Senate, which would “create a mechanism to investigate alleged violations of the code of conduct and other laws” and require justices to explain their recusal decisions to the public.
The question in Moore is whether the 16th Amendment gives Congress authority to tax unrealized sums or, more specifically, whether a portion of the 2017 Tax Cuts and Jobs Act is constitutional. The case is slated to be heard in the upcoming term, but a date has not been slated for arguments.
