WASHINGTON (CN) — Supreme Court Justice Samuel Alito released a sharp statement on Friday, rebutting a request from lawmakers to step down from an upcoming tax case after he gave an interview with an attorney involved in the matter.
In July, Alito sat for an interview with David Rivkin Jr. and James Taranto to discuss the workings of the court. The resulting favorable article, which was filed on the Wall Street Journal’s opinion page, revealed the justice's thoughts on prior rulings and his colleagues. In an aside toward the end of the article, the authors divulged that Rivkin is participating in an upcoming tax case before the court, Moore v. U.S.
Senate Judiciary Committee Chair Richard Durbin sent a letter to Chief Justice John Roberts, arguing Alito’s behavior warranted a recusal in the case. Alito disagreed.
“Senator Durbin’s request for my recusal is presumably based on the theory that my vote in Moore 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,” the Bush appointee wrote.
Framing the interview as “nothing out of the ordinary,” Alito cites times his colleagues have given interviews to media outlets with cases before the court. Alito argues that Rivkin interviewed him as a reporter, not an attorney.
“When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate,” Alito wrote. “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.”
Alito says the justices often have to put aside what attorneys have said about them in their review of matters before him. This is no different.
“We participate in cases in which one or more of the attorneys is a former law clerk, a former colleague, or an individual with whom we have long been acquainted,” Alito wrote. “If we recused in such cases, we would regularly have less than a full bench, and the Court’s work would be substantially disrupted and distorted.”
Since Alito sees no valid reason to recuse, he says he must follow his duty to sit.
Ethics experts disagreed with Alito's assessment, criticizing his comparisons to other justices and citing other cases Alito has recused from.
"Alito apparently believes that as a justice, he's not bound by federal conflict-of-interest laws," Gabe Roth, executive director at Fix the Court, said in an email. "But why then does he recuse each year from more than a dozen petitions involving companies whose shares he owns? Disqualification from a stock case under the law is no different from disqualification in a case where a justice's 'impartiality might reasonably be questioned.' And reasonable people, like Chairman Durbin, are questioning Alito's impartiality."
Roth says there is no problem with Alito being interviewed by the Journal, Rivkin just should not have participated.
"Under a basic understanding of attorney and judicial ethics, what should have happened is that as the first interview was being set up, Rivkin, knowing his Moore petition was under consideration, should have bowed out of the process and let Alito and Taranto proceed," Roth wrote. "That Rivkin appeared as a co-byline in both the first interview, when his petition was pending, and in the second interview, given just after the petition was granted, raises ethical questions that seem obvious to everyone but Alito and require disqualification."
Court watchers have long criticized the justices for their failure to recuse from cases where they might have had a bias. Recently, Justice Clarence Thomas came under fire for not stepping down in a case with potential ties to his wife. Other justices have faced critique for their financial ties to entities on the high court docket.
The murky recusal standard for the justices is a reason many legal experts have called for an official ethics code for the justices. Unlike their peers in the lower courts, the justices are not bound by ethics standards and instead are said to consult a set of guidelines.
Alito has turned to the Journal in the wake of criticism of his failure to disclose gifts from billionaires on his yearly financial reports. The Bush appointee wrote an article for the paper defending himself prior to his interview with Rivkin. He also acknowledged that some of his comments could be controversial, arguing Congress had no authority to regulate the Supreme Court.
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