Alito wasn’t bluffing: He believes the Supreme Court is above the law

Supreme Court Justice Samuel Alito no doubt intended to shock the political world when he told interviewers for the Wall Street Journal that “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.”

Many observers dismissed his comment out of hand, noting the express language in Article III, establishing the court’s jurisdiction under “such regulations as the Congress shall make.” 

But Alito wasn’t bluffing. His recently issued statement, declining to recuse himself in a controversial case, was issued without a single citation or reference to the controlling federal statute. Nor did he mention or adhere to the test for recusal that other justices have acknowledged in similar circumstances. It was as though he declared himself above the law.  

Alito’s recusal was sought in an August letter from Sen. Richard Durbin (D-Ill.) to Chief Justice John Roberts. Durbin detailed the ethics problems raised by Alito’s two-part interview in the Wall Street Journal, which was conducted by journalist James Taranto and David Rivkin, a practicing lawyer.  

Rivkin happens to be counsel of record in Moore v. United States, a major case that was pending in the Supreme Court at the time of the interview and is now set for argument, which may determine the federal government’s authority ever to impose a tax on “unrealized gains” or wealth.  

In view of Alito’s favorable relationship to Rivkin — no justice has previously granted an interview to an advocate with an active case before the court — Durbin’s letter quite reasonably asked Roberts “to take appropriate steps to ensure that Justice Alito will recuse himself in … Moore v. United States.” The response came from Alito himself in the form of a four-page “statement”  explaining his rejection of the recusal request. 

Alito laid down his marker in the second sentence of the statement, with a blunt declaration that “Recusal is a personal decision for each justice.” That assertion of personal choice goes well beyond the court’s “historic practice” of assigning recusal motions to the justice in question. As both the late Justice Antonin Scalia and the late Chief Justice William Rehnquist have explained, individual justices must still follow the “objective” standard found in the federal recusal statute, mandating the disqualification of any judge or justice “whose impartiality might reasonably be questioned.”  

The actual law, in Scalia’s words, requires Alito to determine whether a “reasonable observer who is informed of all the surrounding facts and circumstance” would doubt his ability to exercise detached judgment, given his mid-case work with Rivkin. That is pretty much the opposite of a “personal decision.” 

The recusal decision itself would be a close call under the prevailing law. The potential conflicts in Alito’s unusually favorable relationship with Rivkin ran in both directions. Alito took the unprecedented step of granting an interview to a lawyer with interests currently before the court, and Rivkin’s subsequent interview was filled with, shall I say, unchallenging softball questions. Perhaps a hypothetical “reasonable observer” would find that sufficient to question the justice’s impartiality, and perhaps not, but it is a question that Alito never seemed to consider. 

Instead, Alito’s personal vision dominated his non-recusal statement, ignoring the statutory rule in favor of a previously unknown “sound reason” test of his own devising. Alito’s self-declared standard apparently includes a strong presumption against recusal. Thus, he twice invoked his “duty to sit,” saying it is essential for maintaining the court’s “full bench,” lest its work “be substantially disrupted and distorted.”

In reality, Alito has frequently recused himself in circumstances that are entirely avoidable, with no evident regard for keeping the court at full strength. 

Alito is one of only two justices who own individual stocks (the other is Roberts) in publicly traded corporations. Such holdings require a justice’s recusal whenever one of those companies is a party to a Supreme Court case, no matter how few shares are owned.

According to Westlaw, Alito has recused himself at least 46 times in the past year, which is far more than any other justice, each time leaving the court with an incomplete bench and, per his own warning, risking substantial disruption and distortion. 

The frequent recusals could easily be avoided by investing only in mutual funds (as do the other seven justices), but Alito has obviously chosen to place his personal financial choices ahead of the court’s need for participation by all nine members. That is Alito’s right, of course, but it exposes his idiosyncratic interpretation of the duty to sit, which applies only when he wants it to.  

It is yet to be seen whether Alito will continue to consider stock ownership a “sound reason” for recusal, given his newly expressed disdain for the provisions of federal law. He has so far “voluntarily complied” with other federal ethics statutes, including financial disclosure requirements, but perhaps he will eventually decide there is no “sound reason” for him to keep reporting on his stock holdings. It seems clear, however, that he will persist in picking and choosing which laws to follow. 

Chief Justice John Roberts really, really wants the ethics issues confronting the Supreme Court to go away. In May, he told a meeting of the American Law Institute that “I want to assure people that I’m committed to making certain that we as a court adhere to the highest standards of conduct,” and “We are continuing to look at things we can do to give practical effect to that commitment.” At least two other justices — Elena Kagan and Brett Kavanaugh — appear to agree with the chief.  

A good first step would be for the full court to begin ruling on recusal decisions, rather than leaving them to the discretion of each individual. After all, the Constitution creates “one Supreme Court,” not nine supreme justices.  

Our system of checks and balances should not be subject to an Alito veto. 

Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. He is a coauthor of “Judicial Conduct and Ethics” (fifth edition) and has written many other books.