By Andrew Chung
(Reuters) – U.S. Senate Democrats on Thursday pushed back against Supreme Court Justice Samuel Alito’s recent public comments rejecting the ability of Congress to regulate the justices’ ethics, urging his recusal in any cases concerning legislation on the subject.
Judiciary Committee Chairman Dick Durbin and nine other Democrats on the panel sent a letter to Chief Justice John Roberts asking him to “take appropriate steps to ensure that Justice Alito will recuse himself in any future cases concerning legislation that regulates the court.”
Following revelations in recent months concerning undisclosed luxury trips by private jet and real estate transactions by some of the justices, the committee last month approved and sent to the full Senate a Democratic-backed bill that would mandate a binding ethics code for the nation’s highest judicial body. Given Republican opposition, the bill has little chance of becoming law.
Unlike other members of the federal judiciary, the Supreme Court’s nine life-tenured justices have no binding ethics code of conduct, though they are subject to certain financial disclosure laws.
The letter from the senators addresses recent interviews of Alito published in the Wall Street Journal’s opinion section, including on July 28 when he said Congress lacks the power to regulate the court.
“No provision in the Constitution gives them the authority to regulate the Supreme Court – period,” Alito, one of the six conservative justices on the nine-member court, told the Journal.
“While this view is plainly incorrect,” the senators said in the letter to Roberts, “we are even more concerned that Justice Alito has publicly prejudged a matter that could come before the court in the future.”
The letter also expressed concern that one of the two people who interviewed Alito for the articles, David Rivkin Jr., is an attorney who represents litigants in a tax case set to be argued during the court’s coming term, which begins in October.
“Mr. Rivkin’s access to Justice Alito and 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,” the senators stated.
Rivkin did not immediately respond to a request for comment.
Alito took to the Journal’s editorial page in June to preemptively try to defend his failure to disclose a 2008 trip to Alaska on a private jet belonging to a billionaire hedge fund manager whose business interests have come before the court.
Details of Alito’s trip were revealed by ProPublica, which also exposed decades-long ties between conservative Justice Clarence Thomas and billionaire Dallas businessman and Republican donor Harlan Crow.
The court has drawn criticism from liberals and praise from conservatives in its past two terms for sweeping decisions including ending its recognition of a constitutional right to abortion, expanding gun rights and rejecting affirmative action collegiate admissions policies often used to increase Black and Hispanic student enrollment.
A “Statement on Ethics Principles and Practices” that Roberts sent to Durbin in April – a document the chief justice said all the current justices follow – made clear that individual justices make recusal decisions themselves.
“If the full court or any subset of the court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate,” the statement said.
(Reporting by Andrew Chung; Editing by Will Dunham)