In new letter, top Democratic advocates for Supreme Court transparency press Roberts and the Conference to allow for basic fact-finding in light of Justice Alito’s habit of ethically-questionable conduct
Washington, DC – U.S. Senator Sheldon Whitehouse (D-RI) and Representative Hank Johnson (D-GA) sent a letter Friday to Supreme Court Chief Justice John Roberts and the Judicial Conference urging the Court and the Conference to set up a mechanism for basic fact-finding amid swirling ethics questions that arose from a phone call between Justice Samuel Alito and President-elect Donald Trump this week.
“Earlier this week, Justice Alito and President-elect Trump spoke on a private call by phone, while the President-elect was involved in several high-profile cases pending or likely to come before the Supreme Court, including Donald J. Trump v. New York and TikTok, Inc. v. Garland. This contact could potentially implicate provisions of the Supreme Court’s new code of conduct and of federal law… We humbly suggest that this incident provides yet another reason for the Judicial Conference and the Court to agree on some sort of neutral fact-finding when a justice’s conduct is questioned,” wrote Whitehouse and Johnson.
“No convincing reason exists for the Supreme Court of the United States to remain the only court in the country without an enforceable process for policing misconduct. We submit that this latest incident provides an additional reminder of the need for the Court and Conference to adopt some basic elements of legal process: a place to file complaints, a fact-finding process for credible complaints, and a neutral determination of ethical compliance,” added Whitehouse and Johnson.
On Wednesday, reporting from ABC News uncovered a phone call between Justice Alito and President-elect Trump while the President-elect was involved in cases pending or likely to come before the Court in the same week, including Donald J. Trump v. New York and TikTok, Inc. v. Garland. While Justice Alito denied that the two discussed any of these matters, Whitehouse and Johnson’s letter urges an investigation and neutral fact-finding because the Justice has shown a prior willingness to improperly discuss matters that could come before the Court.
Days after the Senate Judiciary Committee passed Whitehouse and Johnson’s Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, Justice Alito, in an unusual interview with Court Leonard Leo’s lawyer David Rivkin, stated: “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.” The interview was published as an op-ed on the Wall Street Journal editorial page. Leo and three different right-wing billionaires’ lawyers have objected to congressional inquiries into their undisclosed gifts to right-wing justices, citing the same theory Justice Alito offered in his Wall Street Journal editorial page interview.
Whitehouse sent a letter to Justice Alito requesting information regarding the improper comments. Whitehouse also wrote a letter Chief Justice Roberts to lodge an ethics complaint against Justice Alito for violating several canons of judicial ethics, and later submitted a follow-up complaint.
Whitehouse and Johnson’s SCERT Act would require Supreme Court justices to adopt a binding code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, end the practice of justices ruling on their own conflicts of interests, and require justices to explain their recusal decisions to the public.
In December, Whitehouse released a report that found every state supreme court (or equivalent high court) subjects its judges or justices to ethics reviews—similar to the processes that apply to all federal judges except the Supreme Court under the Judicial Conduct and Disability Act.
The text of the letter is below and a PDF of the letter is available here.
January 10, 2025
The Honorable John G. Roberts, Jr.
Chairman, Judicial Conference of the United States
Supreme Court of the United States
One First St. NE
Washington, D.C. 20543
Dear Chairman Roberts and Members of the Conference:
Earlier this week, Justice Alito and President-elect Trump spoke on a private call by phone, while the President-elect was involved in several high-profile cases pending or likely to come before the Supreme Court, including Donald J. Trump v. New York and TikTok, Inc. v. Garland. This contact could potentially implicate provisions of the Supreme Court’s new code of conduct and of federal law. Justice Alito has asserted that President-elect Trump called him to discuss a former law clerk’s qualification for a position in the upcoming presidential administration and denied discussing any matters related to the President-elect’s interest in matters before the Supreme Court. We humbly suggest that this incident provides yet another reason for the Judicial Conference and the Court to agree on some sort of neutral fact-finding when a justice’s conduct is questioned.
Justice Alito has already shown that he is willing to discuss matters that may come before the Supreme Court with people who are personally involved in such matters. In 2023, Justice Alito opined in the editorial pages of the Wall Street Journal that it was unconstitutional for Congress to regulate the Supreme Court at a time when we had introduced Supreme Court ethics legislation, and when the Senate was investigating undisclosed gifts by billionaires to Supreme Court justices. Moreover, this Alito interview was conducted by the lawyer for someone connected to the billionaires and who was refusing to comply with Senate information requests, arguing constitutional concerns.
In 2022, the former leader of a right-wing judicial lobbying group alleged that two of the group’s donors learned the Supreme Court’s decision in a pending case while dining at Justice Alito’s home, an allegation which the Justice has denied.
In both of these incidents, the Justice’s description was provided in public statements through intermediaries. Even where an investigation is cursory, it is ordinary practice to require some formal statement. A formal statement provides added assurance of the truthfulness of the statement’s content, because there are legal consequences to being untruthful in a formal statement.
In cases where the truthfulness of a statement is subject to doubt or dispute, a neutral party (for instance, for a member of Congress, the appropriate ethics committee) would ordinarily take an independent look and evaluate any countervailing evidence. For instance, this would have been useful in the case of the upside-down flag, to reconcile the conflict between Justice Alito’s public statements through intermediaries with conflicting police reports, news stories, school schedules and calendars chronicling the incident.
This is not a difficult problem to solve. Every one of our 50 states and the District of Columbia have a process for investigating and resolving questions of potential judicial misconduct by members of the highest court within their sovereign domain, including provisions for the taking of formal statements. The Supreme Court still has no such process. As a result, when ethical questions arise at the highest Court in the country, the public must rely solely on justices’ informal statements made through intermediaries to the press. In no other branch, office or court would such a method be adequate. Even President Biden sat for a formal statement about his Delaware presidential records.
No convincing reason exists for the Supreme Court of the United States to remain the only court in the country without an enforceable process for policing misconduct. We submit that this latest incident provides an additional reminder of the need for the Court and Conference to adopt some basic elements of legal process: a place to file complaints, a fact-finding process for credible complaints, and a neutral determination of ethical compliance.
