Dear Chief Justice/Chairman Roberts:
I write to lodge an ethics complaint regarding recent public comments by Supreme Court Justice Samuel Alito, which appear to violate several canons of judicial ethics, including standards the Supreme Court has long applied to itself. …
Background
Some of the background facts here were related by members of the Senate Judiciary Committee who signed a letter to you dated August 3, 2023.1 As that letter explains, the Wall Street Journal on July 28, 2023, published an interview with Justice Alito conducted by David Rivkin and James Taranto. Justice Alito’s comments during that interview give rise this complaint.2 The interview had the effect, and seemed intended, to bear both on legislation I authored and on investigations in which I participate.
During the interview, …
Improper Opining on a Legal Issue that May Come Before the Court
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 conduct seems indisputably to violate the Code of Conduct for United States Judges. Canon 1 emphasizes a judge’s obligation to “uphold the integrity and independence of the judiciary”; Canon 2(A) instructs judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”; and Canon 3(A)(6) provides that judges “should not make public comment on the merits of a matter pending or impending in any court.” These canons help ensure “the integrity and independence of the judiciary” by requiring judges’ conduct to be at all times consistent with the preservation of judicial impartiality and the appearance thereof.5
The Court’s Statement of Ethics Principles and Practices, “to which all of the current members of the Supreme Court subscribe,”6 concurs. …
Improper Intrusion into a Specific Matter
These principles apply broadly to any opining, on any issue that might perhaps come before the Court. But here it was worse; it was not just general opining, it was opining in relation to a specific ongoing dispute. The quote at issue in the article—“No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court”—directly follows a mention of my judicial ethics bill. Justice Alito’s decision to opine publicly on the constitutionality of that billmay well embolden legal challenges to the bill should it become law. Indeed, his comments encourage challenges to all manner of judicial ethics laws already on the books.
Justice Alito’s opining will also fuel obstruction of our Senate investigations into these matters. …
Improper Intrusion into a Specific Matter at the Behest of Counsel in that Matter
Compounding the issues above, Attorney David Rivkin was one of the interviewers in the Wall Street Journal piece, and also a lawyer in the above dispute. This dual role suggests that Justice Alito may have opined on this matter at the behest of Mr. Rivkin himself. 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.
The timeline of the Wall Street Journal interview suggests that its release was coordinated with Mr. Rivkin’s efforts to block our inquiry. Mr. Rivkin’s interview with Justice Alito …
Improper Intrusion into a Specific Matter Involving an Undisclosed Personal Relationship
On top of all this, the dispute upon which Justice Alito opined involves an individual with whom Justice Alito has a longstanding personal and political relationship. As my colleagues and I pointed out in our August 3 letter, “Mr. Rivkin is counsel for Leonard Leo with regard to [the Judiciary] Committee’s investigation into Mr. Leo’s actions to facilitate gifts of free transportation and lodging that Justice Alito accepted from Paul Singer and Robin Arkley II in 2008.”25 Mr. Leo was Justice Alito’s companion on the luxurious Alaskan fishing trip in 2008 and facilitated the gifts to the justice of free transportation and lodging. Two years earlier, Mr. Leo’s political organization “had run an advertising campaign supporting Alito in his confirmation fight, and Leo was reportedly part of the team that prepared Alito for his Senate hearings.”26 …
Improper Use of Judicial Office for Personal Benefit
The final unpleasant fact in this affair is that Justice Alito’s opining, apparently at the behest of his friend and ally’s lawyer, props up an argument being used to block inquiry into undisclosed gifts and travel received by Justice Alito. At the end, Justice Alito is the beneficiary of his own improper opining. This implicates Canon 2(B) strictures against improperly using one’s office to further a personal interest: a justice obstructing a congressional investigation that implicates his own conduct. …
Conclusion
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. Whether Justice Alito was unwittingly used to provide fodder for such interference, or intentionally participated, is a question whose answer requires additional facts. The heart of any due process is a fair determination of the facts. Uniquely in the whole of government, the Supreme Court has insulated its justices from any semblance of fair fact-finding. The obstructive campaign run by Mr. Rivkin and Mr. Leo, fueled by Justice Alito’s opining, appears intended to prevent Congress from gathering precisely those facts.
As you have repeatedly emphasized, the Supreme Court should not be helpless when it comes to policing its own members’ ethical obligations. But it is necessarily helpless if there is no process of fair fact-finding, nor independent decision-making. I request that you as Chief Justice, or through the Judicial Conference, take whatever steps are necessary to investigate this affair and provide the public with prompt and trustworthy answers.
Sincerely,
SHELDON WHITEHOUSE
Chairman
Senate Judiciary Subcommittee on
Federal Courts, Oversight, Agency Action, and Federal Rights
