The un-ethics of Sam Alito

Moore questions. No answers.

The ethical questions surrounding Justice Sam Alito and his ideological allies outside of the court remain unanswered, despite Alito’s attempt to brush the questions away.

On Sept. 8, Alito issued a “statement” — presented like an “opinion” to give it a legal veneer — announcing that he will not recuse himself from an upcoming case, Moore v. United States. Although styled as an opinion, it was responding to a letter from Senate Judiciary Committee Chair Dick Durbin and other Democrats on the committee to Chief Justice John Roberts asking, in part, that Alito recuse himself from Moore.

It was not a legal statement, however, and his four-page letter did nothing but make more apparent how questionable the justice’s relationship with BakerHostetler partner David Rivkin Jr. is and how inappropriate Alito’s participation in the Moore case has already been and would be.

The Moore case addresses the ability to, in effect, tax wealth. Unsurprisingly, places like The Wall Street Journal are very interested in the outcome of this case. The Wall Street Journal also happens to be the publication to which Alito has turned three times this year to help him get out his message of grievance. At least two of those times, he did so with the participation of Rivkin, who is representing the Moores in the Moore case. Law Dork covered this debacle at length a month ago.

Alito’s four-page statement announcing defiantly that “[t]here is no valid reason for my recusal in this case” does nothing to alleviate the concerns that I raised there. (It doesn’t even address all of the questions I raised.) If anything, this latest response goes to show all the more how uninterested Alito is in establishing that he has any commitment to ethics on the bench.

Robert Barnes at The Washington Post detailed some of the ways in which Alito’s claims — primarily, that other justices have sat for interviews with publications that later had cases before the court and, in a few instances, justices have sat for interviews or worked on books with lawyers (generally, former clerks) who have cases before the court — are less than persuasive.

I would add the following.

First, to the extent Alito raises any questions about past recusal decisions, it is a statement about how lax the justices have been about recusal. The “duty to sit” that Alito, Roberts, and others raise is important, but they use it improperly. Under current rules, a justice’s recusal means there is one fewer justice considering a case. Unlike with the lower courts, no one else is around to take their place. Because of that, the “duty to sit” means justices should take the decision to recuse themselves seriously and not recuse themselves just because it would be easier to do so. It is not, however, an excuse not to recuse when the standards for recusal are met.

The language of 28 U.S.C. 455 is simple:

The “duty to sit” does not mean a justice should sit even when their “impartiality might reasonably be questioned.”

Then, in a line that is embarrassing for all of us — lawyers, journalists, judges, or sentient beings — Alito wrote, “When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate.“

The pieces are about the Supreme Court, Alito’s colleagues, the law, public perception of and reactions to the court, and Alito’s reactions to all of that.

If Alito actually believes that Rivkin is “a journalist, not an advocate” in those pieces, it might be the most clear statement Alito could give to establish that he is unfit to serve as a judge.

Which takes us to Alito’s alleged comparisons:

Over the years, many Justices have participated in interviews with representatives of media entities that have frequently been parties in cases before the Court, including NPR, the New York Times, CBS, Fox News, National Review, and ABC.

A journalist interviewing a public figure like a justice while employed by a publication and that publication being in court on a case involving its business interests could, depending on the interview and depending on the case, absolutely raise questions about the impartiality of a justice in that case. But, as even Alito would tell us, that is a case-by-case question — “a personal decision for each Justice“ — and one can easily imagine that most circumstances in which this scenario comes up don’t raise questions about impartiality.

But that media-related sentence, with its many footnoted examples of interviews, isn’t the key one for examining the recusal questions raised here. For that, we have to turn to Alito’s next sentence:

Similarly, many of my colleagues have been interviewed by attorneys who have also practiced in this Court, and some have co-authored books with such attorneys.

As to the mention of lawyers who interview justices, the one example Alito gives is Bryan Garner, who has interviewed many justices and argued one case before the court.

The example, in some ways, speaks for itself. On the YouTube page where Garner has posted the interviews, he stated that he had posted “the complete interviews” and urged people to “freely use” them for “educational purposes.”

From Bryan Garner’s YouTube page.

Compare that to Alito’s two closed-door interviews with two partisan ideologues who then wrote up the interviews in a way that happened to be in complete alignment with Alito’s ideological mission and public relations goals.

Then, for the book line, Alito cites to two lawyers who had clerked for a justice and later co-authored a book with that justice. He then suggests that these two lawyers present a similar situation to his with Rivkin because they “practiced in this Court.”

Let’s actually look at that. The first is a reference to former Justice Ruth Bader Ginsburg and her former clerk, Amanda Tyler. Tyler was not a lawyer on the case at issue; she was one of five “federal courts scholars” who signed onto an amici brief prepared by lawyers from Loevy & Loevy. In any event, the case was decided before the underlying interview that led to the collaboration that led to the book that Alito mentioned.

The second is a reference to Justice Neil Gorsuch and his former clerk, David Feder. In that case, Feder was one of two former clerks who co-authored Gorsuch’s book that came out in September 2019. He was counsel of record two years later on an amicus brief filed asking the court to hear a case that it declined to hear with no comment in October 2021.

Whatever this is, it’s not Rivkin. Feder is an associate at his firm, and he was not representing a party in the case. He was authoring an amicus brief with lawyers from the organization in whose name the brief was submitted. (And, while we don’t know Gorsuch’s vote on the cert petition, we know that it wasn’t granted — and we also know that Massachusetts wasn’t even asked to respond to the petition.)¹

In short, the three examples Alito gives of lawyers “who have also practiced in this Court“ look nothing like the public relations campaign Rivkin has helped Alito run this past year. He knows it; we all know it.

Lastly, none of that addresses the Pro Publica story and whether Rivkin was in any way involved in the publication of Alito’s prebuttal in the very same Wall Street Journal opinion pages. It’s a simple question that I asked Alito, Rivkin, and the Wall Street Journal’s editorial page editor: “Was David Rivkin Jr. involved in any way in Justice Sam Alito's June 20 Commentary submission?” As I showed previously, the timeline stinks — and it’s remarkable that none of the people or institutions involved have explained it.

But, for all of that, Alito told us, “there is no sound reason for my recusal in this case, and in accordance with the duty to sit, I decline to recuse.”

1. Again, if you view this as troubling, that’s fine! If so, Alito is showing how loosely the court and Supreme Court bar interpret their ethical rules. I think Feder probably should have stayed off the brief, but I question whether Gorsuch’s “impartiality” is “reasonably questioned” when Feder is on an amicus brief brought by an established organization with an established mission.