In an official court statement published Friday, Supreme Court Justice Samuel Alito is refusing to recuse himself from a tax case that will be heard in the court this session, in which he has a clear conflict of interest. He wrote that there was “no valid reason for my recusal” in the upcoming Moore v. United States case, which could result in a potentially far-reaching challenge to the nation’s tax code.
The valid reasons for Alito to recuse himself were detailed in a letter Senate Judiciary Chairman Dick Durbin wrote to Chief Justice John Roberts last month. Durbin’s letter said that Alito granted “interviews conducted in part by an attorney with a case currently pending before the Court,” which “violated a key tenet of the Statement on Ethics Principles and Practices” that Roberts himself has said all “current Members of the Supreme Court subscribe” to.
That attorney is David Rivkin—the same David Rivkin who conducted two highly politicized interviews with Alito for The Wall Street Journal this year. The first was in April, while the court was considering his petition to hear the tax case, and the second was in July, after the court had accepted the case. That smells a little stinky, Durbin wrote.
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.
This barely scratches the surface of Alito’s relationship with Rivkin and the potential conflicts of interest it poses for the justice, including the fact that Rivkin is also representing Leonard Leo, the Federalist Society co-chair and driving force behind the conservative takeover of the federal judiciary and Supreme Court. Leo is reportedly under investigation by the Washington, D.C., attorney general. He’s also central to the reviews the Senate Finance and Judiciary Committees are conducting into reports of lavish trips and gifts that both Alito and Justice Clarence Thomas have received from conservative billionaires.
Alito dismissed the possibility that his job would be influenced by the fact that Rivkin is actively trying to protect him in those Senate inquiries. Justices “are required to put favorable or unfavorable comments and any personal connections with an attorney out of our minds and judge the cases based solely on the law and the facts,” Alito wrote Friday. “And that is what we do.”
Those words make a mockery of Roberts and all his assertions that the justices are doing a fine job of policing themselves. It’s made even more blatant by the fact that Alito is violating the code publicly and repeatedly in public media. In comparison, he makes Thomas look like the soul of discretion and propriety.
Even before Alito gave the proverbial finger to the Senate, the idea of ethics, and Roberts by refusing to bow out of this case, Senate Democrats had escalated their calls for Roberts to do something about him. Sen. Sheldon Whitehouse lodged a formal complaint against Alito this week, with five counts of ethics breaches. Now he can add a sixth: failure to recuse.
At this point, Alito is making a better case for Congress imposing ethics reform on the court than the Democrats who are pushing the legislation.
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