Sen. Whitehouse Probes Justice Alito’s Interview With WSJ

Justice Alito had told the newspaper that Congress has no authority to regulate the Supreme Court.
Sen. Whitehouse Probes Justice Alito’s Interview With WSJ
Sen. Sheldon Whitehouse (D-R.I.) speaks during a congressional hearing in Washington on Feb. 25, 2021. (Susan Walsh/Pool/Getty Images)
Matthew Vadum

Sen. Sheldon Whitehouse (D-R.I.) has raised questions about Supreme Court Justice Samuel Alito’s interview with The Wall Street Journal last year, calling it “improper.”

The comment came as congressional Democrats pressed Justice Alito to recuse himself in two pending Trump-related election subversion cases the justices are currently deliberating. One concerns whether former President Donald Trump enjoys presidential immunity for actions taken to dispute the 2020 presidential election; the other concerns whether an accounting reform law may be used to prosecute people who allegedly participated in the security breach at the U.S. Capitol on Jan. 6, 2021, during lawmakers’ efforts to certify election results.

In the interview published on July 28, 2023, Justice Alito said, “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.” The conversation took place as the newspaper gave the justice a chance to respond to a then-unpublished ProPublica report that a Republican donor had paid for his fishing trip to Alaska.

In a June 7 letter to Justice Alito that the senator made public on June 10, Mr. Whitehouse wrote that the Supreme Court “is the only place in all of government where issues of this nature have no place or means of investigation or resolution.”

“So far, my questions ... seem to have disappeared into a black hole of indifference,” he wrote

The senator wrote that during his confirmation hearing, Justice Alito said it would be “improper” and a “disservice to the judicial process” for a Supreme Court nominee to comment about issues that might come before the court.

However, in the newspaper interview, Justice Alito offered his opinion on “questions related to Congress’s authority over judicial, and more specifically Supreme Court, ethics concerns,” and “offered an improper opinion regarding a question that might come before the Court,” Mr. Whitehouse wrote.

The Senate Judiciary Committee “is undertaking investigative work into the facts about right-wing billionaires funding certain Supreme Court justices’ lifestyles,” he added.

One of the newspaper interviewers was a lawyer who represents someone the committee is investigating for a possible role in “orchestrating undisclosed billionaire gifts to certain justices, including undisclosed gifts” to Justice Alito, he wrote.

“Any information you would care to provide shedding light on this chain of events would be appreciated,” he wrote.

Democrats say the flying of a U.S. flag upside-down outside Justice Alito’s home days after Jan. 6, 2021, when the inverted flag was being used by Trump supporters to protest, is proof that he isn’t impartial.

The justice said his wife, Martha-Ann Bomgardner Alito, flew the flag as a response to a dispute with neighbors. Democrats also say that a Revolutionary Era “Appeal to Heaven” or Pine Tree flag flown at his summer home is more proof of the justice’s bias. Justice Alito said his wife flew that historic flag as well and refused to recuse himself from the two court cases.

When Senate Democrats demanded a meeting with Chief Justice John Roberts to discuss the possible recusal, the chief justice rejected the proposed gathering as inappropriate.

Justice Alito wrote to Mr. Whitehouse to explain his position.

“I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal,” the justice wrote.

Sen. Whitehouse is sponsoring the proposed Supreme Court Ethics, Recusal, and Transparency Act, which would allow members of the public to file complaints against justices for engaging “in conduct that undermines the integrity” of the court. It would empower a panel of lower court judges to investigate complaints and order disciplinary actions. The Senate Judiciary Committee approved the bill on a party-line vote in July 2023.

Last week, House Democrats offered legislation that would create two new independent offices within the Supreme Court to police ethics.

Republicans in Congress have generally rallied around Justice Alito, although some have said the flying of the flags was ill-advised.

Senate Minority Leader Mitch McConnell (R-Ky.) said the court should “discipline” Sens. Whitehouse and Richard Blumenthal (D-Conn.), who are members of the Supreme Court bar, for violating legal ethics by demanding the recusal.

Mr. McConnell said on the Senate floor on June 5 that one Democrat senator urged the chief justice to strip conservative Justices Alito and Clarence Thomas “of their ability to write majority opinions unless they recuse from the causes liberals don’t want them hearing.”

“This goes beyond the standard disgraceful bullying my Democratic colleagues have perfected,” he said, adding that the statements constituted “conduct unbecoming an officer of the court” and “unethical ex parte communications seeking to change the course of pending litigation.”

Justice Alito didn’t respond by press time to a request by The Epoch Times for comment.