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If Supreme Court Justice Samuel Alito were simply evaluated on the merits of his rulings, the far-right jurist would be seen as one of the more controversial justices of his generation. Alito was, after all, the author of the ruling that overturned Roe v. Wade.
But the key to understanding Alito’s record is acknowledging the broader scope of his tenure on the high court. We are, after all, talking about a sitting justice who has earned a reputation as the high court’s most unyielding ideologue, who has delivered a series of overtly political speeches, who recently issued a public endorsement of a conservative advocacy group’s work, and who thought it’d be a good idea last fall to defend the Supreme Court’s integrity at a pro-Trump organization, exactly two weeks before the midterm elections.
More recently, the conservative became the latest justice to face difficult ethics questions.
It was against this backdrop that Alito sat down in July with the Wall Street Journal’s editorial page — again — to declare his indifference to congressional oversight. “I know this is a controversial view, but I’m willing to say it,” the justice said. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
The U.S. Constitution seemed to offer rather obvious evidence to the contrary, but complicating matters was the fact that Alito — who could’ve presented this misguided argument in any number of different forums — chose to talk to the Journal’s David B. Rivkin Jr., an attorney who’s part of a team with a tax case currently pending at the Supreme Court.
This did not go unnoticed among the justice’s critics. NBC News reported:
Sen. Sheldon Whitehouse, D-R.I., is demanding that Chief Justice John Roberts take action over an unusual interview in which conservative Justice Samuel Alito questioned whether Congress has the power to impose ethics rules on the Supreme Court.
In fact, the Rhode Island Democrat submitted a lengthy written complaint, dated Monday, with the chief justice. “I write to lodge an ethics complaint regarding recent public comments by Supreme Court Justice Samuel Alito, which appear to violate several canons of judicial ethics, including standards the Supreme Court has long applied to itself,” Whitehouse wrote.
But the senator’s complaint also emphasized what he described as systemic shortcomings.
“I write to you in your capacity both as Chief Justice and as Chair of the Judicial Conference because, unlike every other federal court, the Supreme Court has no formal process for receiving or investigating such complaints, and asserted violations by justices of relevant requirements have sometimes been referred to the Judicial Conference and its committees,” Whitehouse wrote. “I include all justices in carbon copy because I am urging the Supreme Court to adopt a uniform process to address this complaint and others that may arise against any justice in the future.
“The recent actions by Justice Alito present an opportunity to determine a mechanism for applying the Judicial Conduct and Disability Act to justices of the Supreme Court. Nothing prohibits the Court or the Judicial Conference from adopting procedures to address complaints of misconduct. The most basic modicum of any due process is fair fact-finding; second to that is independent decision-making.”
Or put another way, the Democratic senator took his concerns to Roberts because he didn’t know what else to do, and he saw no alternatives for recourse.
The chief justice has not yet responded to Whitehouse. It’s an open question as to whether Roberts will do anything at all in response to the senator’s complaint.