On Monday, September 4, 2023, Senator Sheldon Whitehouse (D-RI), the chairman of the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights, sent a letter to Chief Justice John G. Roberts lodging an ethics complaint against Samuel Alito, Associate Justice of the Supreme Court of the United States.
In the 7-page letter, Whitehouse alleges that recent public comments made by Justice Alito in a July 28, 2023, Wall Street Journal interview violated judicial ethics standards and canons that prohibit judges from opining on matters that could come before the court.
Specifically, Whitehouse takes issue with Alito stating, “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period” in the context of discussing legislation Whitehouse has introduced the Supreme Court Ethics, Recusal, and Transparency Act. Whitehouse argues this constitutes improper opining on a legal issue that may come before the court.
Whitehouse also alleges Alito’s comments improperly intruded into ongoing disputes related to investigations by the Senate Judiciary Committee and Senate Finance Committee into dozens of undisclosed gifts donated to Supreme Court justices. He argues Alito’s statements “prop up obstructionist arguments” that have been used to block information requests related to these investigations.
Further, Whitehouse suggests the timing of the interview’s release indicates it may have been coordinated with attorney David Rivkin, who represents a subject of the investigations and also conducted the Wall Street Journal interview of Alito. Whitehouse argues this raises concerns Alito may have improperly opined on the investigations at Rivkin’s behest to benefit a personal friend and ally.
In the letter, Whitehouse implores Chief Justice Roberts to take action, stating: “I request that you as Chief Justice, or through the Judicial Conference, take whatever steps are necessary to investigate this affair and provide the public with prompt and trustworthy answers.”
Whitehouse argues the Supreme Court lacks a formal process for investigating ethics complaints against the justices, stating: “Uniquely in the whole of government, the Supreme Court has insulated its justices from any semblance of fair fact-finding.”
The Senator suggests Alito’s actions may have violated several judicial ethics standards and canons related to maintaining impartiality, avoiding the appearance of impropriety, and improperly using the prestige of judicial office to advance private interests.
Whitehouse concluded by stating: “The heart of any due process is a fair determination of the facts. …It is necessarily helpless if there is no process of fair fact-finding, nor independent decision-making.”
A copy of the original filing can be found here.