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Monday, September 18, 2023

The Alito Veto

My new essay at The Hill addresses Justice Samuel Alito’s shocking statement that federal ethics law does not apply to him.

Here is the gist:

Alito wasn’t bluffing: He believes the Supreme Court is above the law

by Steven Lubet, opinion contributor - 09/18/23

Supreme Court Justice Samuel Alito no doubt intended to shock the political world when he told interviewers for the Wall Street Journal that “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.”

But Alito wasn’t bluffing. His recently issued statement, declining to recuse himself in a controversial case, was issued without a single citation or reference to the controlling federal statute. Nor did he mention or adhere to the test for recusal that other justices have acknowledged in similar circumstances. It was as though he declared himself above the law.  

Alito laid down his marker in the second sentence of the statement, with a blunt declaration that “Recusal is a personal decision for each justice.” That assertion of personal choice goes well beyond the court’s “historic practice” of assigning recusal motions to the justice in question. As both the late Justice Antonin Scalia and the late Chief Justice William Rehnquist have explained, individual justices must still follow the “objective” standard found in the federal recusal statute, mandating the disqualification of any judge or justice “whose impartiality might reasonably be questioned.”  

Instead, Alito’s personal vision dominated his non-recusal statement, ignoring the statutory rule in favor of a previously unknown “sound reason” test of his own devising.

It is yet to be seen whether Alito will continue to consider stock ownership a “sound reason” for recusal, given his newly expressed disdain for the provisions of federal law. He has so far “voluntarily complied” with financial disclosure requirements, but perhaps he will eventually decide there is no “sound reason” for him to keep reporting on his stock holdings.

You can read the entire essay at The Hill.

Posted by Steve Lubet on September 18, 2023 at 08:21 AM | Permalink


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