Sen. Sheldon Whitehouse’s Ethics Complaint Against Justice Alito Is A Big Deal

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The ethics complaint that Sen. Sheldon Whitehouse filed against Supreme Court Justice Samuel Alito is important because it escalates the action by the Senate to assert itself to regulate the Court.

Sen. Whitehouse (D-RI) wrote to Chief Justice Roberts that Alito used an interview in The Wall Street Journal to obstruct a Senate investigation:

it was not just general opining, it was opining in relation to a specific ongoing dispute. The quote at issue in the article—”No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court”—directly follows a mention of my judicial ethics bill. Justice Alito’s decision to opine publicly on the constitutionality of that bill may well embolden legal challenges to the bill should it become law. Indeed, his comments encourage challenges to all manner of judicial ethics laws already on the books.

Justice Alito’s opining will also fuel obstruction of our Senate investigations into these matters. To inform its work on my bill and other judicial ethics legislation, and oversee the performance of the statutory Judicial Conference in this arena, the Senate Judiciary Committee is investigating multiple reports that Supreme Court justices have accepted and failed to disclose lavish gifts from billionaire benefactors. The Senate Finance Committee is investigating the federal tax considerations surrounding the billionaires’ undisclosed gifts to Supreme Court justices.[18] Both committees’ inquiries have been stymied by individuals asserting that Congress has no constitutional authority to legislate in this area, hence no authority to investigate. Justice Alito’s public comments prop up these theories.[19]

As the author of the bill in question and as a participant in the related investigations, I feel acutely the targeting of this work by Justice Alito, and consider it more than just misguided or accidental general opining. It is directed to my work.

Sen. Whitehouse discussed the ethics complaint on MSNBC’s The Last Word:

Sen. Sheldon Whitehouse on his ethics complaint against Justice Alito, “You had a clear violation by Justice Alito. It would be hard for the court, or the Judicial Conference, to just shrug this off.”

— Sarah Reese Jones (@PoliticusSarah) September 6, 2023

The ethics complaint is a big deal because it increases the pressure on the Supreme Court, and it demonstrates that Sen. Whitehouse and the Senate Judiciary Committee Democratic majority are not going to go away and drop this issue. The conservative majority on the Supreme Court appears to hold the belief that they are above the law. Justices like Alito and Thomas feel like the Constitution and the rules do not apply to them.

Democrats in the Senate are attempting to assert the constitutional authority to regulate the Supreme Court, and if Democrats keep the White House and Senate and retake the House in 2024, reform of the Supreme Court will be on the agenda.

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