Justice Alito rejects Democratic demand he recuse himself from certain pending and future cases

September 10, 2023

In early August, Senate Democrats led by Judiciary Committee Chair Dick Durbin (D-IL) demanded that Supreme Court Justice Samuel Alito recuse himself from certain current and future cases after Alito criticized pending Democratic legislation to impose ethics regulations on the high court in a Wall Street Journal interview.

Justice Alito has now responded to the Democratic demands that he abandon his duties and flatly rejected Sen. Durbin's arguments for his recusal as invalid and "unsound," according to Fox News.

Durbin demands Alito's recusal

In an Aug. 3 letter to Chief Justice John Roberts, Sen. Durbin urged him to "take appropriate steps to ensure that Justice Alito will recuse himself in any future cases concerning legislation that regulates the Court, as well as Moore v. United States."

The basis for that demand was a July interview Alito sat for with the Wall Street Journal and opinion columnist David Rivkin, who is also an attorney involved in the Moore v. United States case, which involves a challenge to the constitutionality of a provision of the tax code that imposes a "mandatory repatriation tax" on the unrealized and hypothetical financial gains from investments in foreign corporations.

It was in that WSJ interview that Alito, in reference to pending Democratic legislation to impose regulatory oversight on the co-equal Supreme Court, bluntly stated, "No provision in the Constitution gives them the authority to regulate the Supreme Court -- period."

Alito's recusal refusal

On Friday, in a rare statement attached to an Order List, Justice Alito wrote, "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," and noted particularly, "There is no valid reason for my recusal in this case."

The jurist took stock of Sen. Durbin's demand that he recuse due to the fact that Rivkin is involved in the pending Moore case but said, "This argument is unsound."

He explained that Rivkin had been acting in his capacity as a journalist and not an attorney during the interview in which the Moore case was never discussed "either directly or indirectly," and further pointed out that Rivkin himself had disclosed his case involvement in the article in order for readers to be fully informed -- not to mention numerous other occasions in which justices sat for interviews with attorneys who had cases pending before the court, none of which resulted in or required recusals.

Alito suggested that Durbin's "theory fundamentally misunderstands the circumstances under which Supreme Court Justices must work," and highlighted how justices often sit for cases involving attorneys, members of Congress, former clerks and colleagues, or other acquaintances, any one of whom may have "spoken favorably or unfavorably" about them and their work in the past.

"If we recused in such cases, we would regularly have less than a full bench, and the Court’s work would be substantially disrupted and distorted," the justice wrote.

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. And that is what we do," Alito concluded. "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."

Durbin responds

Of course, Sen. Durbin was none too pleased by Justice Alito's rejection of his recusal demand and fired off a statement of rebuttal that referenced previous baseless accusations of unethical behavior while insisting upon the need for Congress to swiftly pass the stalled legislation his committee passed that is known as the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act.

"Justice Alito, of the originalist school of thinking that empty seats on an airplane don’t count as gifts, surprises no one by sitting on a case involving a lawyer who honored him with a puff piece in the Wall Street Journal," Durbin said. "Why do these Justices continue to take a wrecking ball to the reputation of the highest court in the land?"

"The Court is in a crisis of its own making, and Justice Alito and the rest of the Court should be doing everything in their power to regain public trust, not the opposite," the Democratic senator added. "This episode is further proof that Chief Justice Robert’s failure to act remains untenable, and Congress needs to pass the SCERT Act to create an enforceable code of conduct. Supreme Court Justices should be held to the highest ethical standards, not the lowest."

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