Democrats on the Senate Judiciary Committee asked Chief Justice John Roberts in a new letter sent Thursday to take “appropriate steps” to ensure that Justice Samuel Alito recuse himself from any future legal disputes that might arise concerning pending congressional legislation that regulates the Supreme Court.
The letter comes after Alito said in a Wall Street Journal interview that Congress should stay out of the Supreme Court’s business and stop trying to impose ethics rules on justices and clerks.
“Congress did not create the Supreme Court,” Alito said in the interview. “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court – period.”
A string of news stories criticizing the court for a lack of transparency and disclosure, spurred committee Democrats to advance legislation in late July meant to create a code of ethics directed specifically at the Supreme Court.
Judiciary Committee Chairman Dick Durbin and other Democrats argue that “by opining on the constitutionality of legislation under consideration by the U.S. Senate” Alito likely violated a Statement of Ethics the court released in April by “creating an appearance of impropriety in the minds of reasonable members of the public.”
In addition, they noted that one of the men who conducted the interview, David A. Rivkin, is representing the plaintiffs in a tax case – Moore v. United States – that will be heard next term at the Supreme Court.
“Mr. Rivkin’s access to Justice Alito and efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties,” Durbin said.
Durbin’s request will be further complicated by the fact that under current practice, Roberts does not have the authority to mandate a recusal from Alito. That’s because recusal issues are left up to the individual justices.
The Senate Judiciary Committee passed a bill last month meant to force the Supreme Court to adopt a stronger ethics policy. But it is unlikely to garner the necessary votes before the full Senate and will be a dead letter before the Republican-led House of Representatives.
Alito has declined to comment to CNN’s questions about his interview.