The ethical implications of President-elect Trump's call with Justice Alito; NPR, January 9, 2025

Michel Martin, NPR; The ethical implications of President-elect Trump's call with Justice Alito

"Alito and Trump spoke Tuesday, a day before the president-elect urged the Supreme Court to halt his Jan. 10 sentencing in the New York hush-money case, the justice said in a statement from the court. They did not discuss the case, however, Alito said.

MICHEL MARTIN, HOST: 

Donald Trump spoke with Supreme Court Justice Samuel Alito on Tuesday, just hours before the president-elect asked the top court to block his sentencing over his New York hush money case. Alito said in a statement that the two of them did not discuss the case or any others involving Mr. Trump or potentially involving him. Gabe Roth joined me earlier to talk about this development, which was first reported by ABC News. Mr. Roth founded Fix the Court. His group advocates for ways to make the federal courts more open and accountable to the public. Good morning. Thanks for joining us.

GABE ROTH: Good morning.

MARTIN: So let me give a picture of the call, as we understand it. Justice Alito said in a statement that one of his former law clerks asked him to take a call from Mr. Trump regarding his qualifications to serve in a government position, in essence, to give him a job reference. What do you make of it?

ROTH: I mean, well, it's obviously an unmistakable breach of protocol. You have an individual and the president-elect, who is petitioning the Supreme Court related to his sentencing in the hush money case, a Supreme Court justice, who, frankly, should know better. This conversation should not have taken place. And someone like Will Levi, the man in question who's looking for a credential, he has plenty of other credentials. He worked for Mike Lee. He could have Mike Lee call. He could - he's worked - he's been a partner in the law. His dad's a former federal judge. His grandfather was the attorney general. So, you know, it doesn't make sense from his perspective, and it's just - this episode shows the justices don't really care about the ethics because they know that no one's going to stop them from doing whatever it is that they want to do.

MARTIN: Have any ethical rules or laws been broken here, to your knowledge?

ROTH: Laws - I don't see any laws having been broken, but, you know, there are certain protocols that if you are a Supreme Court justice, you really don't intermingle with the executive branch or the incoming executive branch. I mean, maybe you attend the State of the Union speech that happens every year, though Justice Alito famously stopped attending that. But generally, the two branches don't intermingle - and especially at a time when President Trump, we know, is going to have all these executive orders coming down the pike whose fate will be decided by the justices. This, to me, just seems like an opportunity for him to have an audience before one of the nine people determining his and his administration's fate in so many of these issues...

It's all self-enforcing and self-policing. So that is really, you know, sort of what the challenge is for people like me and other people who care about the ethics of our highest court is - how do you get the justices to act in a way that is sort of consistent with what most people would believe are their ethical responsibilities?"

Alito Spoke With Trump Shortly Before Supreme Court Filing; The New York Times, January 8, 2025

Adam Liptak, The New York Times ; Alito Spoke With Trump Shortly Before Supreme Court Filing

"Justice Samuel A. Alito Jr. spoke with President-elect Donald J. Trump on Tuesday, not long before Mr. Trump’s lawyers asked the Supreme Court to delay his sentencing following his conviction in New York in a case arising from hush money payments.

Justice Alito said the call was a routine job reference for a former law clerk whom Mr. Trump was considering for a government position.

It was not clear, however, why Mr. Trump would make a call to check references, a task generally left to lower-level aides.

Gabe Roth, the executive director of Fix the Court, an advocacy group that seeks more openness at the Supreme Court, said the call was deeply problematic given the ethics controversies swirling around the court in general and Justice Alito in particular."

Thomas and Alito took part in the case, despite calls for their recusal.; The New York Times, July 1, 2024

Adam Liptak, The New York Times ; Thomas and Alito took part in the case, despite calls for their recusal.

"Justices Clarence Thomas and Samuel A. Alito Jr., rejecting calls for their disqualification, participated in the decision on the scope of former President Donald J. Trump’s immunity from prosecution.

Experts in legal ethics have said that the activities of the justices’ wives raised serious questions about their impartiality."

What Justice Alito said on ethics and recusal in his confirmation hearings; Citizens for Responsibility and Ethics in Washington (CREW), June 17, 2024

Linnaea Honl-Stuenkel and Connor Ganiats , Citizens for Responsibility and Ethics in Washington (CREW); What Justice Alito said on ethics and recusal in his confirmation hearings

"Recusals

Alito faced scrutiny for his initial failure to recuse from a case against the financial company Vanguard while serving on the U.S. Court of Appeals for the Third Circuit, despite holding at least $390,000 in Vanguard funds. Alito maintained that his failure to recuse was a mistake that he later remedied, and that ruling in the case did not actually violate judicial ethics rules. 

Alito repeatedly stressed that he would recuse from cases where the ethics code required him to do so, despite the broad duty for Supreme Court justices to hear cases. When asked about the case by Senator Orrin Hatch, Alito said, “I not only complied with the ethical rules that are binding on Federal judges—and they’re very strict—but also that I did what I have tried to do throughout my career as a judge, and that is to go beyond the letter of the ethics rules and to avoid any situation where there might be an ethical question raised.”

When pressed further by Senator Russ Feingold, Alito said he would not commit to recusing from all Vanguard cases going forward, but, “I will very strictly comply with the ethical obligations that apply to Supreme Court Justices.” 

Later, during a back and forth with Senator Edward Kennedy about his Vanguard mutual fund not being on his recusal list, Alito said: “I am one of those judges that you described who take recusals very, very seriously.” 

Jamie Raskin: How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases; The New York Times, May 29, 2024

Jamie Raskin , The New York Times; Jamie Raskin: How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases

"At his Senate confirmation hearing, Chief Justice Roberts assured America that “Judges are like umpires.”

But professional baseball would never allow an umpire to continue to officiate the World Series after learning that the pennant of one of the two teams competing was flying in the front yard of the umpire’s home. Nor would an umpire be allowed to call balls and strikes in a World Series game after the umpire’s wife tried to get the official score of a prior game in the series overthrown and canceled out to benefit the losing team. If judges are like umpires, then they should be treated like umpires, not team owners, team fans or players."

Alito Ethics Defense Blown Up by Second Insurrectionist Flag; New York Magazine, May 22, 2024

Jonathan Chait, , New York Magazine; Alito Ethics Defense Blown Up by Second Insurrectionist Flag

"Now, the New York Times reports that Alito flew another flag associated with Trump’s insurrection, the “Appeal to Heaven” flag, which was carried by insurrectionists on January 6. The flag was confirmed to have flown over Alito’s beach house in July and September 2023.

Note how the old Alito defenses are totally useless in the face of this new case. It can’t be chalked up to a dispute with a neighbor, unless the same neighbor happens to own property near Alito in two different states. The wife excuse is also threadbare. (Indeed, Alito, who blamed his wife in a response to the first Times story, has no comment in response to the second one.) And the excuse that it was “a heated time in January 2021” obviously does not explain why the Alito home continued to display insurrectionist flags two and a half years later."

Alito’s inverted flag makes a mockery of the Supreme Court’s code of ethics; The Hill, May 21, 2024

 CEDRIC MERLIN POWELL, The Hill; Alito’s inverted flag makes a mockery of the Supreme Court’s code of ethics

"This violates the court’s newly minted code of conduct, which remains unenforced because the court regulates itself. Its legitimacy is buttressed by a paper tiger.

The inverted flag on Justice Alito’s flagpole violates nearly all of the court’s ethical rules. 

Its first disqualification rule says “A Justice is presumed impartial and has an obligation to sit unless disqualified.” Alito’s impartiality has been shattered. He should be disqualified because he has not avoided “impropriety and the appearance of impropriety in all activities” per Canon 2, and he cannot “perform the duties of office fairly [and] impartially” per Canon 3 because the inverted flag signals his allegiance to a party that has pending matters before the court. 

The partisan and volatile tenor of the inverted flag “endorse[s] a … candidate for public office,” which violates Canon 5 because it trades in the discredited Trump-invented trope of a stolen election. Justice Alito has not refrained from political activity; thus, the independence of the judiciary is called into question, per Canon 1. This is particularly disconcerting because Justice Alito is the third most senior justice on the court...

Every branch of government, including state and lower federal courts, has enforceable and binding codes of conduct that ensure impartiality, fairness and legitimacy. Congress must adopt a binding code of conduct for the Supreme Court. We should right the flag by turning it upward toward our democratic principles."

Supreme Court Ethics Controversies: Alito’s Upside-Down Flag Flying Draws Concern; Forbes, May 17, 2024

Alison Durkee , Forbes; Supreme Court Ethics Controversies: Alito’s Upside-Down Flag Flying Draws Concern

"Supreme Court Justice Samuel Alito flew an upside-down American flag outside his house after the 2020 election, The New York Times reported Thursday—a symbol of the “Stop the Steal” movement challenging the election results—the latest in a string of recent ethics issues the court has faced that have ramped up criticism of the court and sparked cries for a binding code of ethics from lawmakers and legal experts...

Alito said in a statement to the Times about the flag flying that he “had no involvement whatsoever in the flying of the flag,” claiming “it was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”"

Two Justices Clash on Congress’s Power Over Supreme Court Ethics; The New York Times, August 26, 2023

Adam Liptak , The New York Times; Two Justices Clash on Congress’s Power Over Supreme Court Ethics

"Congress has enacted laws that apply to the justices, including ones on financial disclosures and recusal. In a way, the most telling ethics legislation came from the first Congress, in 1789, requiring all federal judges, including Supreme Court justices, to take an oath promising “that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me.""

No, Justice Alito. Congress should not butt out on Supreme Court ethics.; The Washington Post, July 30, 2023

Ruth Marcus , The Washington Post; No, Justice Alito. Congress should not butt out on Supreme Court ethics.

"Since 1948, Congress has required federal judges — including Supreme Court justices — to recuse themselves from deciding cases in which their “impartiality might reasonably be questioned.” Is that unconstitutional? Since 1978, it has required federal judges — including justices — to file financial disclosure forms. Is that unconstitutional? (The justices, including Alito, say they voluntarilyfollow those rules.) Since 1989, it has imposed strict limits on outside income and gifts for federal judges — including justices. Is that unconstitutional? Just last year, Congress amended the ethics rules to mandate that federal judges — including justices — promptly disclose their stock transactions. Is that unconstitutional?

Why would it be? The Alito argument, such as it is, proves too much. It would mean that Congress could not make it a crime for justices to accept bribes. And why would Congress have power to impose ethics rules on the executive branch but not on the judiciary — or are those unconstitutional, too?

We don’t want Congress punishing the court for issuing decisions with which lawmakers disagree. Respect for the separation of powers and the independence of the judiciary counsels caution in this area. But it does not dictate hands off, no matter what Alito might wish."

The Supreme Court’s excuses for ethics violations insult our intelligence; The Hill, July 25, 2023

 STEVEN LUBET, The Hill; The Supreme Court’s excuses for ethics violations insult our intelligence

"The three justices’ hollow rationalizations display a patronizing expectation that the public will ultimately buy whatever they say, no matter how implausible. 

But to paraphrase the late Justice Robert Jackson: Supreme Court justices do not get the last word because they are infallible; they only believe themselves infallible because they get the last word. When it comes to judicial ethics, that has to change."

Supreme Court's Alito defends against ethics questions; Reuters via NBC, June 20, 2023

Reuters via NBC ; Supreme Court's Alito defends against ethics questions

"Conservative Supreme Court Justice Samuel Alito on Tuesday published a commentary in The Wall Street Journal defending himself from questions about his ethical conduct raised in an article by news outlet ProPublica.

The commentary on the WSJ website addressed what Alito referred to as “charges” by journalists from ProPublica that he had failed to recuse from cases in which an entity connected to hedge fund founder Paul Singer was a party and to report certain gifts on mandatory annual financial disclosure forms, such as a private flight to Alaska for a fishing trip.

“Neither charge is valid,” Alito wrote."

Justice Samuel Alito: ProPublica Misleads Its Readers; WSJ, June 20, 2023

 Samuel A. Alito Jr., WSJ ; Justice Samuel Alito: ProPublica Misleads Its Readers

"The publication levels false charges about Supreme Court recusal, financial disclosures and a 2008 fishing trip."

Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court; ProPublica, June 20, 2023

Justin Elliott, Joshua Kaplan, Alex Mierjeski, ProPublica; Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court

"In the years that followed, Singer’s hedge fund came before the court at least 10 times in cases where his role was often covered by the legal press and mainstream media. In 2014, the court agreed to resolve a key issue in a decade-long battle between Singer’s hedge fund and the nation of Argentina. Alito did not recuse himself from the case and voted with the 7-1 majority in Singer’s favor. The hedge fund was ultimately paid $2.4 billion.

Alito did not report the 2008 fishing trip on his annual financial disclosures. By failing to disclose the private jet flight Singer provided, Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts.

Experts said they could not identify an instance of a justice ruling on a case after receiving an expensive gift paid for by one of the parties."