By Mark Sherman | Associated Press
WASHINGTON — Justice Samuel Alito asserts that Congress does not have the authority to enforce a code of ethics on the Supreme Court. He is the first member of the court to publicly oppose proposed ethics rules for justices in response to increased scrutiny of their activities outside of their judicial duties.
Alito expressed his view in an interview with the Wall Street Journal opinion pages, stating, “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.” The interview, which took place in New York in early July, was published on Friday.
Although the bill faces slim chances in the full Senate, Democrats managed to pass Supreme Court ethics legislation through a Senate committee last week.
While all federal judges, excluding the justices, already adhere to an ethics code established by the federal judiciary, the Supreme Court’s unique status as the only federal court created by the Constitution exempts it from these standards.
This issue first arose after ProPublica reported that Justice Clarence Thomas participated in luxurious vacations and a real estate deal with a prominent Republican contributor. Chief Justice John Roberts also declined to testify before the committee regarding the court’s ethics, prompting Democrats to take action. Furthermore, it was later revealed that Alito had taken a luxury vacation in Alaska with a Republican donor who had business interests before the court. Justice Sonia Sotomayor was also reported to have utilized college visits to promote sales of her books over the past decade.
Alito, who joined the court in 2006 and is 73 years old, has rejected the idea that he should have disclosed his Alaska trip or recused himself from cases involving the donor, hedge fund owner Paul Singer. He wrote his own op-ed for the Wall Street Journal, which was published shortly before ProPublica’s story.
Alito affirmed that he is unwilling to leave allegations unanswered even though judges and justices typically do not respond to their critics. He stated, “And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself,” in his latest column.
While no other justice has spoken as definitively about ethics legislation, Roberts has raised concerns about Congress’ authority to oversee the Supreme Court. In his year-end report in 2011, Roberts mentioned that the justices comply with legislation requiring annual financial disclosures and limitations on outside earned income, but questioned whether Congress can impose such requirements on the Supreme Court.
Although the justices have yet to adopt an ethics code voluntarily, Roberts stated in May that there are additional actions the court can take to adhere to the highest ethical standards, without specifying details.
The column is co-authored by James Taranto, the editorial features editor of the paper, and David Rivkin, a Washington lawyer. Rivkin represents Leonard Leo, the former leader of the conservative legal group The Federalist Society, in his interactions with Senate Democrats who seek information on Leo’s dealings with the justices. Leo played a role in arranging Alito’s trip to Alaska.
Rivkin wrote a letter to leading Democrats on the Senate Judiciary Committee, arguing that their request was politically motivated and violated Leo’s constitutional rights. He also contended that a congressionally imposed ethics code for the Supreme Court would be unconstitutional. Rivkin separately represents a couple whose tax case will be argued before the court in the fall.
Alito, Taranto, and Rivkin conducted interviews in April and July, with a total duration of four hours. They published an account of the earlier interview in April.