Samuel Alito refuses to step aside from case involving lawyer who interviewed him on ethics for WSJ

Associate Justice Samuel Alito poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021.

Erin Schaff | Pool | Reuters

WASHINGTON — Conservative Justice Samuel Alito on Friday refused to step aside from an upcoming tax case being argued at the Supreme Court, rejecting a request from Senate Democrats.

Sen. Richard Durbin, D-Ill., the chairman of the Senate Judiciary Committee, was among those who had questioned Alito’s participation because one of the lawyers involved in the case, David Rivkin, recently interviewed Alito in two articles published in The Wall Street Journal.

“There is no valid reason for my recusal in this case,” Alito wrote in a statement issued by the court.

In the interviews, Alito pushed back on claims of ethics violations and questioned whether Congress could legislate on the issue.

Separately, Rivkin represents the conservative legal activist Leonard Leo, whom the Judiciary Committee has sought testimony from on ethics questions.

The case in question, Moore v. U.S., concerns a novel constitutional question on whether people can be forced to pay taxes on a stake in a foreign-owned company even if they have not derived any income from it.

Rivkin is one of the lawyers facing off against the federal government in the case, brought by Charles and Kathleen Moore, who invested in an India-base company.

Alito wrote that Durbin’s argument that he should recuse because of Rivkin’s role was “unsound” in part because Rivkin was participating in the interviews as a journalist, not an advocate.

“The case in which he is involved was never mentioned; nor did we discuss any issue in that case either directly or indirectly,” Alito wrote.

Gabe Roth, executive director of Fix the Court, a judiciary watchdog, said Rivkin’s involvement in the interviews when he had a case before the court “raises ethical questions that seem obvious to everyone but Alito and require disqualification.”

Earlier this week, another Democrat, Sheldon Whitehouse, D-R.I., filed his own complaint related to one of Alito’s interviews, saying his statements about Congress’ authority to legislate on ethics issues were improper.

“No provision in the Constitution gives them the authority to regulate the Supreme Court — period,” Alito said in the interview.

The Supreme Court has been under increasing scrutiny for alleged ethics lapses after a ProPublica report detailed Justice Clarence Thomas’ acceptance of trips from Harlan Crow, a Republican donor, which he had not disclosed in his annual financial disclosure reports.

Some members of Congress have proposed legislation on the issue, although the court could address the issue itself by adopting its own binding code of conduct similar to the one that lower court judges follow.


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