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Justice Alito's non-recusal explanation misses the mark

It's good that he tried to explain why he isn't recusing from an upcoming case. But it's a bad explanation.

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Justice Samuel Alito on Friday published a statement about why he isn’t recusing from an upcoming Supreme Court case. Given the court’s opacity, it’s good that he’s attempting to justify his behavior publicly.

But it’s not his most convincing work.

First, what’s the case and what prompted the call for his recusal? It’s Moore v. United States, an important dispute that could have implications for the legality of a federal wealth tax. One of the attorneys who brought the case is David Rivkin, a Republican lawyer and commentator.

Where things start to get more questionable is that Rivkin is bylined on Alito’s open therapy sessions published in the Wall Street Journal opinion pages this past April and July. (I covered them here and here.)

The April piece platformed and bolstered Alito’s claim that the leak of his draft Dobbs opinion overturning abortion rights made the justices targets for assassination (as opposed to the opinion itself doing so), and that Alito had a pretty good idea of who leaked it (but he didn't specify) and why (to prevent the draft from becoming law).

The July piece, headlined “Samuel Alito, the Supreme Court’s Plain-Spoken Defender,” was another fawning jam session with the conservative justice, which praised Alito’s judging as “pragmatic." Like the April piece, it gave him a perch to air various views and grievances. Journal editor James Taranto is bylined with Rivkin on both efforts.

Also unconvincing is Alito’s claim that there was 'nothing out of the ordinary about the interviews in question.' Indeed, the interviews were nothing if not extraordinary.

It was in the July piece — which featured, among other things, Alito’s imperious claim that Congress can’t regulate the court — that Rivkin and Taranto parenthetically noted Rivkin’s involvement in Moore, which the justices had agreed in June to hear this coming term, which starts in October. That is, Rivkin's petition was pending (but, crucially, not yet granted) when the first fawning Alito interview came out. It takes four justices to grant review of an appeal and the vote tally isn’t public. Thousands of petitions are filed at the court each year but fewer than a hundred are granted.

A recusal call came in August, when Senate Judiciary Committee Democrats wrote to Chief Justice John Roberts “regarding recent interviews that Justice Samuel Alito granted to the Wall Street Journal” that were “conducted in part by an attorney with a case currently pending before the Court” — i.e., Rivkin.

“Mr. Rivkin’s access to Justice Alito and efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties,” the Senate Democrats wrote.?

Unsurprisingly, the reliably Republican Alito was unmoved, proclaiming in his statement Friday that there’s “no valid reason for my recusal in this case.” The justice sought to downplay Rivkin’s role in the Journal's outings, writing that the lawyer who’s hoping to capture Alito’s vote participated in the interviews “as a journalist, not an advocate,” and that the lawyer's “involvement in the case was disclosed in the second article, and therefore readers could take that into account.”

Putting aside Alito’s waving of a magic “journalist” wand over the endeavor (whatever the distinction from advocacy is even worth in Rivkin's case), what’s more perplexing is the justice’s assurance that the disclosure of Rivkin’s involvement is something readers could take “into account.”?

It’s not about whether there’s a direct quid-pro-quo at play. It’s about how it all looks to those of us on the outside looking in.

It would have been nice if Alito had expanded on the relevance of that disclosure to the recusal question because it seems like something that cuts against his argument. That is, the thing that readers could take “into account” — Rivkin’s interest in the case that Alito will vote on, which the lawyer apparently felt necessary to disclose — is something that would seem Alito should have likewise taken into account in his recusal analysis, but in a manner that favors recusal. Yet, without explaining how, he appeared to weigh the disclosure as something that helps his case.

Also unconvincing is Alito’s claim that there was “nothing out of the ordinary about the interviews in question.” Indeed, the interviews were nothing if not extraordinary. But the facts that Alito mustered to justify that conclusion make it even weirder.

He wrote: “Over the years, many Justices have participated in interviews with representatives of media entities that have frequently been parties in cases before the Court, including NPR, the New York Times, CBS, Fox News, National Review, and ABC.”

Yet, unlike Rivkin, reporters from those outlets weren’t simultaneously pushing litigation they hoped the court would take up and then decide in their clients' favor.

To be sure, I don’t think an Alito vote for Rivkin’s position in Moore would be the direct result of the lawyer’s participation in these puff pieces (though they won’t have hurt). More likely, it would be the result of them both being Republican lawyers with common aims and respective roles to achieve them. Presumably, knowing they’re simpatico is what led Alito to let his hair down for these interviews in the first place.?

But it’s not about whether there’s a direct quid-pro-quo at play. 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.?

When the court granted review of the Moore case in June, the Journal’s editorial board applauded. The board said it could be a “landmark tax case” that will “consider the legality of a form of wealth tax that is the long-time dream of the political left.”

For such a politically contentious and momentous case, one imagines the Journal’s editors — and interviewers — are happy to have their justice on board. ?

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