Justice Alito Dismisses Calls for Recusal Following Interviews

Associate Supreme Court Justice Samuel Alito poses for the official photo at the Supreme Court in Washington on Oct. 7, 2022. Olivier Douliery/AFP via Getty Images

Supreme Court Justice Samuel Alito rejected Democrat calls for his recusal from a case after giving interviews with a lawyer involved in the suit.

In an Aug. 3 letter (pdf) to Supreme Court Chief Justice John G. Roberts, Senate Judiciary Chairman Dick Durbin (D-Ill.), along with others, asked him to take “appropriate steps to ensure” that Justice Alito will recuse from the Moore v. United States case. It was because Justice Alito had given interviews to David Rivikin—an attorney representing plaintiffs in the lawsuit and also a contributor at The Wall Street Journal.

By giving such interviews to an attorney involved in a case pending before the Supreme Court, Justice Alito “violated a key tenet of the Statement on Ethics Principles and Practices to which all Supreme Court Justices purport to subscribe,” the letter argued.

In a statement (pdf) filed at the Supreme Court on Friday, the Justice dismissed these accusations, stating that there is “no valid reason for my recusal in this case.”

“Recusal is a personal decision for each Justice, and when there is no sound reason for a Justice to recuse, the Justice has a duty to sit. Because this case is scheduled to be heard soon, and because of the attention my planned participation in this case has already received, I respond to these concerns now,” he wrote.

When Mr. Rivkin participated in the interviews, he did “as a journalist, not an advocate,” Justice Alito said. He pointed out that many justices have, over the years, taken part in interviews with representatives of media outlets that have “frequently been parties in cases before the Court.”

“Many of my colleagues have been interviewed by attorneys who have also practiced in this Court, and some have co-authored books with such attorneys. Those interviews did not result in or require recusal.”

Justice Alito wrote that Senator Durbin’s request for recusal is based on a theory that his vote in the Moore v. United States case would be affected “in some way” due to interviews with Mr. Rivkin.

“That theory fundamentally misunderstands the circumstances under which Supreme Court Justices must work.”

Supreme Court Justices often have to preside over cases in which one of the attorneys have spoken favorably or unfavorably about their work. The justices also receive briefs from Members of Congress who have supported or opposed their Supreme Court confirmations or have made positive or negative comments about them, he said.

If the justices were to recuse themselves from such cases, the Supreme Court would “regularly have less than a full bench.”

“In all the instances mentioned above, we 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,” Justice Alito wrote.

“And that is what we do. For these reasons, there is no sound reason for my recusal in this case, and in accordance with the duty to sit, I decline to recuse.”

Justice Alito usually recuses himself from lawsuits where he has financial investments with any of the involved parties. But there has been a recent rise in requests that he stay away from certain cases. This has seen the Justice pushing back against such persistent demands.

Congress Versus Supreme Court

Justice Alito’s interviews with Mr. Rivkin had irked several Democrats. In a July 28 interview, Justice Alito pointed out that “Congress did not create the Supreme Court”—the Constitution did. “I know this is a controversial view, but I’m willing to say it … No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”

“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.”

His comments came as Democrats have put conservative-leaning Supreme Court justices under scrutiny. Justice Alito was appointed by a Republican President and had written the landmark decision overturning Roe. v. Wade last year.

According to the Congress website, “the Constitution provides for the existence of a Supreme Court, but leaves to Congress the decision whether to establish inferior federal courts.”

Meanwhile, Sen. Sheldon Whitehouse (D-R.I.) asked Justice Roberts to investigate Justice Alito for “violating several canons of judicial ethics” following the latter’s comments in the July 28 interview.

Sen. Sheldon Whitehouse (D-R.I.) listens during a hearing on Capitol Hill in Washington, on Feb. 25, 2021. Susan Walsh/Pool/Getty Images

“I’ve lodged a formal ethics complaint against Supreme Court Justice Samuel Alito. If the Court claims it can police its own members, now is the time to prove it,” Mr. Whitehouse said in a Sept. 5 post on X.

Justice Alito’s refusal to recuse himself from the Moore v. United States case has attracted criticism and support.

“The case that Justice Alito is refusing to recuse himself from is one that could preemptively ban a federal wealth tax. It would torpedo one of our only remaining tools to combat raging inequality. Alito accepted free travel from a billionaire GOP donor,” Robert Reich, a professor at Berkeley and a former Secretary of Labor, said in a Sept. 9 X post.

Carrie Severino, president of nonprofit organization Judicial Crisis Network (JCN), defended Justice Alito’s stance on the recusal issue.

“Justice Alito just publicly rejected Senator Durbin’s absurd demand that he recuse in the upcoming Moore v. United States tax case. This is part of the new playbook for Democrats: Try to pack the Court by subtracting justices in key cases through bogus recusal demands,” she said in a Sept. 8 X post.