When the Supreme Court left for summer recess in June, the justices were deadlocked on adopting a formal code of ethics.
Chief Justice John Roberts sought unanimity among the nine justices for strong ethical standards, CNN has learned, but no such agreement eluded him. It is not clear what standards the majority may be considering and the reasons for the abstentions.
New comments by Justice Samuel Alito in an interview with the Wall Street Journal suggest why he and perhaps other justices may be resisting and rejecting outside pressure on ethics, despite the escalating controversy over the justices’ lavish travel and other non-judicial behavior.
Alito said he “voluntarily follows the disclosure laws that apply to lower court judges,” and expressed disdain for efforts by Congress to persuade judges to adopt their own ethics rules.
“I know that’s a controversial point, but I’m going to say it,” Alito said. “No provision in the Constitution gives them the power to regulate the Supreme Court — period.”
Alito’s broader remarks reflect a belief that outside critics, not the justices themselves, are the source of legitimacy concerns engulfing the high court.
Still, while Alito brushed aside controversy over the justices’ luxury travel and other extracurricular activities, including his own, he revealed a potential new conflict of interest by granting a lawyer involved in court hours personal access to the interviews.
Appellate attorney David B. Rivkin Jr., one of two writers who interviewed Alito for the WSJ opinion section, is currently representing the parties in a tax case pending before the Supreme Court. Last week, Rivkin also wrote a letter to two Democratic senators defending Alito’s trip and the work of Leonard Leo, a conservative activist who has influenced presidential elections for the Supreme Court and who has helped arrange travel and other benefits for incumbents. judges.
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Rivkin’s connection to the tax case was revealed in a WSJ report on Friday; his introduction to Leo and his defense before 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 clarifications about his relationship with Rivkin and potential conflicts of interest. He did not answer the questions. CNN wrote and spoke to Rivkin for comment, but he declined.
Last week’s developments have added to the drama over the judges’ lack of official safeguards to prevent conflicts of interest and their general lack of transparency related to off-judge conduct.
Alito’s comments offered a window into the resistance and resentment that continues. He told WSJ writers that he was speaking out to protect himself and the Supreme Court because “no one else” would.
But congressional Republicans defended the judges, as did conservative allies. Moreover, by granting conservative Wall Street Journal writers special access — four hours over two sessions — Alito reinforced the impression that justices on the right only wanted to answer to one side.
Alito and other justices routinely refuse to answer questions from news reporters about their activities outside the court, including their travel financing with wealthy benefactors, or about the details of their money-making ventures, including book publishing.
Alito previously turned to the Journal, which has written in favor of the court’s conservative leanings and criticized any deviation, to try to prevent a ProPublica report about his 2008 Alaska fishing vacation and private jet trip with Paul Singer , a hedge fund manager involved in litigation that went to court. Alito does not disclose the trip in his annual financial filings.
ProPublica reported that Leo, who for decades has led the Federalist Society and influenced the selection of Republican presidents, helped organize the trip and asked Singer to fly with Alito on his plane.
In response to an inquiry by Senate Democrats about the trip last week, Rivkin, writing on Leo’s behalf, dismissed any suggestion of wrongdoing. “Even assuming this trip is somehow relevant to the Supreme Court’s current ethics concerns, the connection is greatly weakened, focused on a ‘distant object’ of supposed ‘legitimate concerns’ about ethical standards,” Rivkin wrote.
ProPublica reported earlier this year that Judge Clarence Thomas failed to disclose travel and other gifts received by Republican megadonor Harlan Crowe. Crowe also purchased Thomas’ family home in Georgia and paid tuition for Thomas’ grandson, none of which Thomas disclosed on annual financial information forms. A separate investigation by the Associated Press recently focused on the use of liberal Justice Sonia Sotomayor by Supreme Court officials 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 judges, but the bill cannot be ignored. The 11 committee Democrats voted for the measure and the 10 Republicans opposed it. The bill is likely to fall short of the votes it needs to pass the Senate and is doomed to failure in the Republican-controlled House of Representatives.
Still, public concern about judicial behavior is growing as judges change American life with their rulings.
Over the past two years, the conservative-dominated bench has overturned precedent on abortion rights and affirmative action on campus. He strengthened gun ownership and the interests of religious conservatives.
At the same time, there has been a record loss of public confidence in the judiciary, according to multiple opinion polls.
The justices are grappling with how to respond to public and congressional concerns. Roberts privately tries to reach consensus among his colleagues on formal rules.
In his interview with the WSJ, Alito acknowledged that Roberts “places a lot of importance on consensus” in the cases.
Asked if other justices agreed with Alito’s declaration that Congress has no constitutional authority over judicial ethics, the justice said: “I don’t know that any of my colleagues have talked about that publicly, so I don’t think I have to say. But I think it’s something we’ve all thought about.”
01:49 – Source: CNN
Demsen. Murphy criticizes Justice Alito: ‘It’s just stunningly wrong’
In the past, the ethical controversies faded and the Supreme Court continued business as usual. But newsroom investigative teams are increasingly scrutinizing judges’ extracurricular activities. And Democratic members of Congress continue to promise action.
After Alito’s interview was published, Democrats in the Senate and House of Representatives stepped up their public criticism.
Speaking on CNN’s “State of the Union” Sunday, Democratic Sen. Chris Murphy of Connecticut called Alito “stunningly wrong” to think Congress should stay out of judicial ethics.
“It’s just wrong on the facts to say that Congress has nothing to do with the rules that govern the Supreme Court,” Murphy said, adding, “It’s even more troubling that Alito feels the need to engage in a congressional debate.”