Alito's Wall Street Journal interviews and commentary raise a big recusal question

Law Dork looks into the timeline of a major tax case for next term & Alito's three recent WSJ opinion page appearances — and comes away with questions.

A fair amount has been written and said at this point about Justice Sam Alito’s latest airing of grievances in the opinion pages of The Wall Street Journal, including here at Law Dork, but I had a set of questions — including one particular issue — that I’ve not yet seen addressed.

In the July interview with David Rivkin Jr. and James Taranto, published on the afternoon of July 28, Alito made news for his comments about congressional authority to regulate aspects of the court — comments that Justice Elena Kagan indirectly responded to this week — but Alito’s relationship with Rivkin is significant as well.

The July 28 “Weekend Interview” was not, of course, Alito’s first appearance as a “Weekend Interview” subject this year. That was in April, and was also conducted by Rivkin and Taranto. Alito also published a “Commentary” piece (such as it was) in June.

As to all of that, I posed a series of questions to Alito, Rivkin, and Wall Street Journal Editorial Page Editor Paul Gigot on the evening of July 28, just hours after the second interview was posted.

The trio have not responded to my inquiries and it’s been a week, so I’m just going to lay it all out for everyone.

My broad premise is that because Rivkin is a partner at Baker & Hostetler LLP and counsel to the Charles and Kathleen in Moore v. United States, a major tax case set to be heard by the Supreme Court in its next term, Rivkin also being part of an ongoing “interview” team helping the justice get out his message(s) of grievance raises questions about Alito’s objectivity to a reasonable observer. (This premise was partially advanced in a letter sent Thursday from 10 of the 11 Democrats on the Senate Judiciary Committee to Chief Justice John Roberts.)

As such, this ultimately raises a question of why Alito did not recuse himself from consideration of the certiorari petition in Moore — as he is to do in “any proceeding in which his impartiality might reasonably be questioned” — and whether he will recuse himself in Moore going forward.

The background

Rivkin’s involvement in the case was not disclosed in the April 28 “Weekend Interview” at all and was not disclosed until the 26th paragraph of the July 28 interview (as was discussed on social media soon after The Wall Street Journal posted the interview online). Even when it was acknowledged in the second interview, it was as an aside at the end of a paragraph mentioning the case as one of several that the court will be hearing in its next term.

Excerpt from the Wall Street Journal July 28 “Weekend Interview” by David Rivkin Jr. and James Taranto with Justice Sam Alito

But, more than that, the acknowledgment and discussion of the case is understated in the Alito interview. This is not just any tax case. We don’t have to veer far off our current focus to see the stakes. Let’s just look at how the Wall Street Journal Editorial Board characterized the case the day after the Supreme Court announced it would be hearing Moore:

Down in the editorial, the board is characteristically blunt and, perhaps literally, pearl-clutching:

The legal and economic stakes are high. A ruling that upholds the Ninth Circuit would open the door for Congress to tax wealth and property of all kinds, including art and collectibles. Sens. Bernie Sanders and Elizabeth Warren are wealth-tax evangelists, and Senate Finance Chairman Ron Wyden has floated a proposal. The press is already pitching the case in class-warfare terms as an opening for corporate refunds. The horror.

For my purposes, this works quite well. Simply put: This case is a big deal to the big money folks.

The timeline

So, before we get to the (unanswered) questions, here is a (somewhat extensive) timeline of the past six months:

• Feb. 21: Petition for a writ of certiorari filed in Moore v. United States

• March 27 Amicus briefs supporting the Moore cert petition filed, including from the U.S. Chamber of Commerce and Manhattan Institute

• Mid-April (specific date unknown): Rivkin and Taranto had “a mid-April interview in [Alito’]s chambers“ with Alito

• April 28: The Wall Street Journal published its first 2023 “Weekend Interview” with Alito

• May 16: United States filed its certiorari opposition in Moore

• May 30: Moores’ reply was filed and the Moore petition was distributed to be considered at the justices’ private June 15 conference

• June 15: Justices held their private conference

• June 16: Pro Publica reporters sent questions to Supreme Court Public Information Officer Patricia McCabe for Alito regarding a pending story

• June 20: Moore petition was distributed to be considered at the justices’ private June 22 conference

• June 20, 6:25 p.m.: The Wall Street Journal published what is, essentially, Alito’s prebuttal to what he believed the Pro Publica story would be based on the questions as a “Commentary”

• June 20, 11:49 p.m.: Pro Publica published its Alito story

• June 22: Justices held their private conference

• June 26: Supreme Court announced that it had granted certiorari and would be hearing Moore

• June 27: The Wall Street Journal Editorial Board published its editorial stating that the ”stakes are high” in Moore for those whop oppose a wealth tax

• Early July (specific date unknown): Rivkin and Taranto had “an early July interview at the [Wall Street] Journal’s New York offices” with Alito

• July 10: Baker & Hostetler’s Andrew Grossman, counsel of record for the Moores in Moore, filed a letter motion “on behalf of all parties“ asking for an extension of the briefing schedule in Moore to “accommodate the schedules of counsel” (Note that this, potentially, could have been before the “early July” interview due to the imprecise timing described in The Wall Street Journal’s “Weekend Interview.”)

• July 18: The Supreme Court granted the motion for an extension of the briefing schedule in Moore

• July 28: The Wall Street Journal published its second 2023 “Weekend Interview” with Alito

The questions

While I have seen lots of discussion about the publication of Rivkin and Taranto’s two interviews with Alito, I’ve not seen as much discussion of the interview timing itself. I also have seen no real discussion of whether — and, if so, how — the Alito “Commentary” prebuttal figures into the questions the interviews raise.

July 28 “Weekend Interview”-related questions:

• Was it discussed whether it was appropriate for David Rivkin Jr. to be a part of the interview that was the subject of the July 28 piece?

• Did David Rivkin Jr. disclose his involvement in Moore v. U.S. with the Wall Street Journal Opinion section before the interview?

• Did David Rivkin Jr. disclose his involvement in Moore v. U.S. with Justice Sam Alito before the interview?

• Has Justice Sam Alito taken any action since learning that David Rivkin Jr. is working on Moore v. U.S.?

April 28 “Weekend Interview”-related question:

• Was there any discussion of disclosing David Rivkin Jr.’s involvement in the pending petition in Moore v. U.S. when the April 28 piece was published?

June 20 “Commentary”-related question:

• Was David Rivkin Jr. involved in any way in Justice Sam Alito's June 20 Commentary submission?

Neither Alito, Rivkin, nor Gigot have responded to my request for answers to these questions over the past week. (The second and third July 28 “Weekend Interview”-related questions were only posed to Rivkin. The fourth July 28 “Weekend Interview”-related question was only posed to Alito.)

The bottom line

By time the first interview with Justice Sam Alito was held in April, not only had the Moores filed their certiorari petition, but some of the heavy-hitters in the conservative world had already made clear their strong interest in having the conservative-majority court take up the Moore case.

The very day that Alito published his “Commentary” seeking to serve as a prebuttal to Pro Publica’s ethics story was the second date the Moore petition was distributed to the justices. (In recent years, and in response to several cases in which justices had to recuse themselves after the court granted certiorari or in which the court had to dispose of cases after having granted certiorari for some technical reason, the court began listing cases for two conferences before granting certiorari to ensure there were no so-called “vehicle issues” with cases that the court did agree to hear — an informal, unwritten, and inconsistent practice, but something the court has done.)

When certiorari was granted in Moore on June 26, after the second conference in which Moore had been distributed for consideration, however, there was no note that Alito had recused himself from consideration of the petition.

Finally, while the extension of the briefing schedule being granted is not unusual, I wanted to note it in the timeline to highlight that things were happening in Moore as the second interview took place. Specifically, that a letter request in the case was sent on the letterhead of Rivkin’s firm within days of the July interview.

It is not clear when Alito or The Wall Street Journal’s Opinion section was aware of all of this, but, by publication date on July 28, The Wall Street Journal decided that all that was necessary by way of disclosure was a parenthetical in the 26th paragraph of the story that one of the two interviewers had a major case — of particular interest to the The Wall Street Journal Editorial Board — pending at the court throughout the “four hours” of interviews with Alito.

With that known, looking back, that also means that — in between those “two wide-ranging sessions” of interviews — the justices were deciding to grant certiorari in that case, right around the time when Alito got The Wall Street Journal Opinion section to publish a “Commentary” piece that he had written to preemptively fight back against ethical questions that he suspected were about to be raised regarding his behavior.