The Democratic senator who suggested that the federal government not investigate who leaked Supreme Court Justice Samuel Alito’s draft opinion overturning Roe v. Wade — citing “separation of powers” — is now pressuring Chief Justice John Roberts with an ethics complaint targeting Alito concerning congressional investigations into the Court.
Rhode Island senator Sheldon Whitehouse introduced Supreme Court Ethics, Recusal and Transparency Act in July.
Alito, speaking to The Wall Street Journal, said he and the other justices on the court voluntarily followed disclosure statutes that applied to lower-court judges and executive-branch officials. He noted, “Congress did not create the Supreme Court”— the Constitution did — adding, “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
In a seven-page letter to Roberts, Whitehouse complained, “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.”
“The Senate Judiciary Committee’s investigation encompasses reports that Justice Alito accepted but did not disclose gifts of travel and lodging valued in the tens of thousands of dollars,” Whitehouse wrote, likely referring to a report from the left-leaning group Pro Publica. “Further investigation may reveal additional information that Justice Alito would prefer not come to light. The facts as already reported suggest that Justice Alito likely violated the financial disclosure requirements of the Ethics in Government Act.”
Alito fired back at the Pro Publica claims in June, writing in The Wall Street Journal, “When I joined the Court and until the recent amendment of the filing instructions, justices commonly interpreted this discussion of ‘hospitality’ to mean that accommodations and transportation for social events were not reportable gifts. The flight to Alaska was the only occasion when I have accepted transportation for a purely social event, and in doing so I followed what I understood to be standard practice.”
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After the draft of Alito’s opinion that overturned Roe v. Wade was leaked, causing a national furor, Republican Louisiana Sen. John Kennedy contended that the leaker should be fired, disbarred, and prosecuted.
Whitehouse responded by suggesting that the FBI should not be investigating the matter, saying, “It’s an interesting separation of powers question why FBI agents from the executive branch would be running around within the Supreme Court, interviewing clerks and staff and justices themselves, if it’s not appropriate for Congress to exercise its legislative powers with regard to those standards.”
But in his complaint to the Supreme Court, Whitehouse appeared to use a reverse of the argument, condemning Justice Alito’s statement in an interview that “[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court, period.” Whitehouse wrote, “Those arguments assert (in my view wrongly) that our constitutional separation of powers blocks any congressional action in this area, which in turn is asserted (also wrongly, in my view) to block any congressional investigation.”