The Supreme Court on Tuesday will hear arguments in what The Wall Street Journal’s editorial board called a potentially “landmark” tax case in which the court will “consider the legality of a form of wealth tax that is the long-time dream of the political left.” One of the case’s notable features doesn’t involve the legal issue presented but rather that one of the editorial board’s favorite justices, Samuel Alito, declined to recuse from it.
The recusal issue arose from fawning interviews published in the Journal’s opinion pages, because they were conducted in part by David Rivkin, a Republican lawyer and commentator who represents Charles and Kathleen Moore, the petitioners in Tuesday’s case, Moore v. United States. Indeed, one of the interviews was conducted while Rivkin was trying to convince the justices to take up the case. Rivkin’s petition was filed in February, and the first Alito interview was published in April, after what Rivkin and his co-author, WSJ editorial features editor James Taranto, described in their piece as “a mid-April interview in his [Alito’s] chambers.”
The court granted review in June, to the delight of the WSJ board. In the next Rivkin/Alito interview, published in July, Rivkin and Taranto parenthetically noted Rivkin’s involvement in the appeal.
If all of this looks a bit shady to the average reader, it wasn’t enough for Alito to step aside. The Republican appointee published a statement in September explaining why he declined to recuse. As I observed at the time, it wasn’t a convincing explanation.
Defending himself in the statement, Alito pointed to that disclosure in the July piece, writing that Rivkin’s “involvement in the case was disclosed in the second article, and therefore readers could take that into account.”
But take what “into account” exactly? Alito didn’t elaborate, but the disclosure shows that he and Rivkin understood that it was worthy of notation for some reason. It would seem that the circumstances leading to that disclosure would likewise warrant recusal, but Alito drew the opposite conclusion. (I should also note, given Alito’s supporting role in the court’s ethics scandals starring Justice Clarence Thomas, that Rivkin has also represented Leonard Leo in the GOP judicial kingmaker’s defiance of the Senate Judiciary Committee’s ethics probe that has touched on, among other things, Leo’s relationship with Alito. Both WSJ pieces were dismissive of Supreme Court “ethics” issues, using quote marks around the word.)
In his statement, Alito further brushed off calls for recusal by deeming the servile interviews to be “nothing out of the ordinary” and noting that Rivkin had participated in them “as a journalist, not an advocate.” The justice cited interviews his colleagues have given to media outlets over the years, noting that those justices had not recused when the relevant media entities were before the court. But of course, there’s a difference in not recusing from cases involving large media companies that happen to employ journalists to whom the justices have granted interviews, because reporters from those outlets weren’t simultaneously pushing litigation that they hoped the court would take up and then decide in their clients’ favor.
As I noted in my September critique of Alito’s statement, if the justice votes for Rivkin’s position, that wouldn’t necessarily be the result of the lawyer’s participation in these puff pieces. But the question isn’t whether there’s a quid pro quo. Rather, as I wrote then: “It’s about how it all looks to those of us on the outside looking in, who aren’t party to these cushy interviews but are bound by the results of these decisions nonetheless.”
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