Justice Alito’s Misconduct and Why We Need A Supreme Court Ethics Code

By: Grace Ort

Justices smiling for inaugural supreme court photo (Justice Alito is the person circled)

Long gone is America’s vision of the Supreme Court as an untouchable body that rarely makes headlines. In the past decade alone, it has seen controversial presidential appointments, overturned decades of precedent, and faced public scrutiny due to the conduct of its justices. In particular, one justice has come under fire for his behavior: Samuel Alito, a conservative who was appointed by President Bush in 2006. Justice Alito’s conduct outside of the court, as well as the broader implications of his actions, demonstrate a key reason for voters to support legislation that would impose a concrete ethics code on the Supreme Court.

While investigations by independent media sources are still ongoing, several examples of Alito’s misconduct have been revealed. ProPublica, a news organization that investigates abuses of power, recently published an article detailing a luxury fishing vacation that the justice took with hedge fund billionaire Paul Singer in 2008.

There are two issues with this. The first is that Alito, having gone on this luxury vacation from Singer, did not report this in his financial disclosure forms. This violates a federal ethics law that requires judges to report large gifts. Additionally, ProPublica reported that Singer had pending business before the court, as his hedge fund appeared in cases over 10 times following the vacation in 2008. It is unethical that Alito took the vacation with Singer considering that Singer’s business was soon to appear in a case that Alito would judge. Alito declined to recuse, or excuse himself from judging, these cases, even though there were substantial grounds for him to decide that his impartiality had been threatened because he had a pre-existing relationship with Singer.

ProPublica sent Alito questions via email about this situation last week, but Alito declined to answer them directly. Instead, he took to the pages of The Wall Street Journal, a right-leaning newspaper, and wrote an op-ed that attacked ProPublica and defended his own behavior, stating that he had not spoken to Singer more than a few times, he was unaware of Singer’s relationship with the hedge fund, and that he was not required to disclose any details of the vacation.

Many were jarred by Alito’s appearance in the opinion section of the journal, as justices have historically maintained a stoic public front for the sake of their own impartiality so as to not threaten the credibility of the court. Not only did Alito break this impartiality, but he did so in a newspaper that has consistently published right-leaning content, which suggests that his own judicial philosophy might be biased towards the right in future decisions. In addition to publishing op-eds in The Wall Street Journal, Alito has given exclusive interviews to its contributors, which again breaks the tradition of justices remaining detached from public affairs. He was interviewed for a total of four hours by David B. Rivkin Jr. and James Taranto, who later published a piece about the interview titled, “Samuel Alito, the Supreme Court’s Plain-Spoken Defender.” In the piece, Alito gave extensive insight into his judicial philosophy and analyses of his colleagues.

He also stated that Congress has no power to regulate the Supreme Court. This simply isn’t true. Congress has the constitutional power to confirm the court’s justices, impeach them, determine their number, determine their salaries, and decide the court’s appellate jurisdiction.

Besides the inaccuracies and improper insight that Alito gave into the court, it has also come to light that Rivkin, one of his interviewers, is a lawyer in a case that will be on the court’s docket next quarter. It is not ethical for a justice of the Supreme Court to allow a lawyer in a future case to have this kind of access to his person, as it taints Alito’s impartiality and threatens the court’s decision as a whole.

While Alito’s behavior may be shocking, similar situations have occurred with other justices on the Supreme Court, including Antonin Scalia and Clarence Thomas, highlighting reasons for voters to support the passage of a Supreme Court ethics code. There is currently no code in place. It is vital that the court maintains the respect and trust of the American people in order to function as the Constitution dictates. The justices must be trusted and maintain their impartiality for this to happen, and an ethics code would ensure that misconduct does not happen. This is not about partisanship or precluding any Supreme Court decisions, but rather ensuring that it can continue to carry out its function as a part of the US legal system.

Written by intern Grace Ort