On a recent Friday, Justice Samuel Alito dismissed demands by Democrats on the Senate Judiciary Committee for his withdrawal from a tax dispute owing to his connections with an attorney involved in the case. In a statement inserted into a list of normal summer orders issued on Friday morning, Alito argued that “there is no sound reason for a Justice to recuse, the Justice has a duty to sit.” This marks the latest development in a sequence of debates over the ethical protocols of the justices, inclusive of in-depth reporting on luxury travel sponsored by billionaires that both Alito and Justice Clarence Thomas failed to promptly include in their annual financial reports.
The contentious issue circles around two interviews conducted with James Taranto, a Wall Street Journal editor, and private practice lawyer David Rivkin, who served in the administrations of Ronald Reagan and George H.W. Bush. In the first of these interviews, held in April, Alito discussed the fallout from the leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, a case in which the court annulled the constitutional right to abortion. Thereafter, in a July interview, Taranto and Rivkin described Alito as an “important voice on the court with a distinctive interpretative method” grounded in originalism and textualism.
In August, led by Sen. Richard Durbin from Illinois, Democrats on the Senate Judiciary Committee sent a letter to Chief Justice John Roberts about the Alito interviews. Durbin suggested Roberts “ensure that Justice Alito recuses himself in any future cases involving legislation that regulates the Court”. Durbin also advised that Alito should withdraw from Moore v. United States, a tax case likely to be argued in front of the justices in December, given Rivkin’s representation of the petitioner in the case.
Chief Justice Roberts did not respond to Durbin’s letter, but Alito, in a four-page statement published alongside the court’s orders on Friday, dismissed Durbin’s plea for his withdrawal from Moore. Justice Alito insisted that when Rivkin interviewed him in April and July, he acted as a journalist, not an advocate, and stressed they did not discuss his engagement in the case. Alito pointed to other instances when his colleagues had been interviewed by media outlets or lawyers but did not later recuse themselves from cases with those outlets or attorneys involved, maintaining that “there was nothing out of the ordinary about the interviews in question.”
Nonetheless, Gabe Roth, the executive director of the nonpartisan watchdog group Fix the Court, criticized Alito’s statement. Noting that Alito recuses himself annually from cases concerning companies he owns stock in, he highlighted that “disqualification in such a scenario under the law is no different from disqualification in a case where a justice’s ‘impartiality might reasonably be questioned.’”