On April 25, all nine justices of the U.S. Supreme Court signed one Statement of Ethical Principles and Practiceswhich they presented to the Senate Judiciary Committee.
“With respect to the recusal,” the justices unanimously declared that they “follow the same general principles and legal standards as other federal judges.”
It took Justice Samuel Alito less than five months to break his written commitment to his colleagues and the public. In four-page format opinion On September 8, Alito issued a ruling refusing to withdraw from a major tax case without once citing, mentioning or acknowledging either man Federal Refusal Act or the “general principles” to which he had only recently agreed.
Instead of applying statutory law or Supreme Court precedent, Alito invented an entirely new rule that no one had ever invoked before any justice. Claiming that the recusal was simply the “personal decision of each individual justice,” Alito announced that he would recuse himself only on the basis of what he called “valid reason” — an undefined and as-yet-unknown reason that has no inherent meaning .
Both the late Chief Justice William Rehnquist and the departed justice Antonin Scalia published statements explaining their non-opposition. Each judge based his decision on the federal disqualification law, citing the provision that a judge “shall disqualify himself in any proceeding in which his impartiality could reasonably be called into question.”
Far from calling it a “personal decision,” Rehnquist explained that “the investigation is objective and conducted from the perspective of a reasonable observer who is informed of all surrounding facts and circumstances.”
Scalia also did not believe that rejection was simply a matter of personal choice. “Refusal is the course I must and will take if, based on established principles and practices, I have said or done something that requires that course,” he said.
“It took Justice Samuel Alito less than five months to break his written commitment to his colleagues and the public.”
In contrast, Alito’s statement, free of law and precedent, was directly related to his earlier statement in a Wall Street Journal Interview published July 28 that “no provision in the Constitution provides for this [Congress] the power to regulate the Supreme Court – period.”
The interview was conducted in part by attorney David Rivkin, who was then and still is counsel in a pending case before the Supreme Court Moore v. United States, which can determine the government’s authority to tax “unrealized gains” and assets. Given the unique relationship between Alito and Rivkin (no other justice is known to have given an attorney an interview on a case then before the court), Sen. Richard Durbin (D-IL) sent one letter to Chief Justice John Roberts on August 3, urging him to “take appropriate steps to ensure that Justice Alito will retire in…” Moore v. United States.”
Alito could have easily rejected Durbin’s request under the terms of federal law, but he had a more performative point to make.
So, as we have seen, Alito’s rejection decision was based solely on his personal beliefs, without reference to the law and principles he had committed to uphold only a few months earlier. He claimed, oddly, that Rivkin conducted the interview “as a journalist and not as a lawyer,” as if a lawyer could somehow suspend his obligations to his client in high-risk litigation when deciding whether to confront an interviewee about what had just happened or coddle to be one of the judges in his case.
Without a hint of irony or self-awareness, Rivkin subsequently co-authored one Essay In The Wall Street Journal He argued that Alito got the issue of repudiation — and everything else — exactly right. Regardless of whether Rivkin was acting as a journalist or as a lawyer, Alito had every reason to be pleased with the high-profile praise.
There is nothing Roberts, as an individual, can do about a judge who has disregarded the authority of Congress and has all but announced that he has no intention of accepting statutory law. However, there are actions the other eight justices can take together to respond to Alito’s idiosyncratic stance.
First and foremost, the court should Finally adopt a written code of ethics like every other court in the United States Code of Conduct for US Judges, which has applied to the lower federal courts since 1973, contains specific provisions for disqualification, including the well-known requirement for recusal if “the judge’s impartiality could reasonably be called into question.” Roberts once said that the Supreme Court “had no reason to adopt the Code of Conduct as its definitive source of ethical guidance.” Alito clearly proved him wrong.
In addition, the court should “historical practice“Rejection decisions should be attributed exclusively to the respective judiciary. This approach could work reasonably well if each judge agreed to “follow the same general principles and legal standards as other federal judges.” But it fails completely when a justice proclaims that Congress is not his boss and petulantly refuses to even mention the rules and precedents that other justices have respected.
As I have already emphasized BeforeAccording to the Constitution, the judicial power of the United States is vested in “one Supreme Court,” not nine chief justices. No individual judge should be able to decide that their personal decisions are above the law.
Steven Lubet is Williams Memorial Professor Emeritus at the Pritzker School of Law at Northwestern University. He is co-author of Judicial Conduct and Ethics (fifth edition), and has written many other books.