John Roberts can’t get a Supreme Court ethics code. Alito’s interview shows why

By CNN Newsource

Published July 31, 2023 2:59 PM

By Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — When the Supreme Court left for its summer recess in June, the justices were at a stalemate on adopting a formal ethics code.

Chief Justice John Roberts has been seeking unanimity among the nine justices for firm ethics standards, CNN has learned, but such agreement has eluded him. It is not clear what standards a majority might be considering and the reasoning of the holdouts.

Justice Samuel Alito’s new comments in a Wall Street Journal interview suggest why he and perhaps other justices might be resisting and rebuffing outside pressure related to ethics, despite escalating controversy over justices’ lavish travel and other off-bench behavior.

Alito said he “voluntarily follows disclosure statutes that apply to lower court judges,” and he expressed disdain for congressional efforts to persuade the justices to adopt their own ethics rules.

“I know this is a controversial view, but I’m going to say it,” Alito said. “No provision in the Constitution gives them the authority to regulate the Supreme Court – period.”

Alito’s broader remarks reflected a belief that outside critics, not the justices themselves, are the source of legitimacy concerns engulfing the high court.

Yet even as Alito brushed aside controversy over justices’ luxury travels and other extracurricular activities, including his own, he revealed a potential new conflict of interest by granting a lawyer involved in court business hours of personal access for the interviews.

Appellate lawyer David B. Rivkin Jr., one of the two writers who interviewed Alito for the WSJ opinion section, currently represents litigants in a pending tax case at the high court. Rivkin also last week wrote a letter to two Democratic senators that defended Alito’s travel and the activities of Leonard Leo, a conservative activist who has influenced presidential choices for the Supreme Court and who has helped arrange travel and other benefits for sitting justices.

Rivkin’s connection to the tax case was disclosed in the WSJ’s report on Friday; his representation of Leo and defense to Senate Judiciary Committee leaders of Alito’s 2008 trip to Alaska with a hedge fund billionaire was not.

After the new interview was published, CNN asked Alito for any explanation regarding his dealings with Rivkin and potential conflicts of interest. He did not respond to questions. CNN wrote and spoke to Rivkin, requesting any comment, but he declined.

The developments last week added to drama over the justices’ lack of formal safeguards to prevent conflicts of interest and their overall lack of transparency related to off-bench behavior.

Alito’s comments offered a window into the resistance and sense of aggrievement that persists. He told the WSJ writers that he was speaking out to defend himself and the Supreme Court because “nobody else” would.

Republicans in Congress have defended the justices, however, as have conservative allies. Further, in giving the conservative Wall Street Journal writers special access – four hours over two sessions – Alito reinforced the appearance that justices on the right want to answer only to one side.

Alito and other justices routinely decline to answer questions from news reporters about their off-bench activities, including the financing of their travel with wealthy benefactors or about the details of their money-making enterprises, including book publishing.

Alito previously turned to the Journal, which editorializes in favor of the court’s conservative trend and criticizes any deviation, to try to preempt a ProPublica report on his 2008 Alaska fishing vacation and private jet travel with Paul Singer, a hedge fund manager involved in litigation that reached the court. Alito did not disclose the travel on his annual financial disclosure forms.

ProPublica reported that Leo, who for decades led the Federalist Society and influenced Republican presidents’ judicial selection, had helped organize the trip and asked Singer to fly Alito on his jet.

In responding to Senate Democrats’ inquiry into the travel last week, Rivkin, writing on behalf of Leo, rejected any suggestion of misconduct. “Even assuming that trip is somehow relevant to present concerns about Supreme Court ethics, the connection is highly attenuated, focused on ‘an object remote’ from purported ‘legitimate concerns’ about ethics standards,” Rivkin wrote.

ProPublica earlier this year reported that Justice Clarence Thomas failed to disclose travel and other gifts received from Republican megadonor Harlan Crow. Crow also purchased Thomas’ family home in Georgia and paid tuition for Thomas’ grandnephew, neither of which Thomas disclosed on annual financial disclosure forms. A separate Associated Press investigation recently focused on liberal Justice Sonia Sotomayor’s use of Supreme Court staff to coordinate and promote the sale of her books.

Earlier this month, the Senate Judiciary Committee approved legislation that would create a code of ethics for the justices, but the bill is bound to stall. The 11 committee Democrats voted for the measure, the 10 Republicans against. The bill is likely to lack the necessary votes to advance to Senate floor consideration, and it would be doomed in the Republican-controlled House of Representatives.

Still, public concern over the justices’ conduct has been rising as the justices have been reshaping of American life with their rulings.

In the past two years, the conservative-dominated bench has overturned precedent on abortion rights and campus affirmative action. It has enhanced gun ownership and the interests of religious conservatives.

At the same time, there has been a record loss of public confidence in the court, according to numerous public opinion polls.

The justices have been struggling with how to respond to public and congressional concerns. Roberts has in private been trying to obtain consensus among his colleagues for formal rules.

In his WSJ interview, Alito acknowledged that Roberts on cases “puts a high premium on consensus.”

Asked if other justices agree with Alito’s declaration that Congress has no constitutional authority on judicial ethics, the justice said: “I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about.”

In the past, ethics controversies have faded, and the Supreme Court has carried on with business as usual. But newsroom investigative teams are increasingly scrutinizing the justices’ extracurricular enterprises. And Democratic members of Congress have continued to vow action.

After Alito’s interview was published, Democrats in the Senate and House intensified their public criticism.

Speaking on CNN’s “State of the Union” on Sunday, Democratic Sen. Chris Murphy of Connecticut called Alito “stunningly wrong” in the view that Congress must stay out of judicial ethics.

“It is just wrong on the facts to say that Congress doesn’t have anything to do with the rules guiding the Supreme Court,” Murphy said, adding, “it is even more disturbing that Alito feels the need to insert himself into a congressional debate.”

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