Democrats vs. the Supreme Court

Democrats are continuing their campaign to discredit the Supreme Court, and their frequent demand these days is “recuse!” They want conservative Justices disqualified from hearing cases that they fear won’t turn out the way progressives want. This needs to be understood as an attempt to usurp the judiciary and control the Court.

The Democrats’ latest target is Justice Samuel Alito, who had the effrontery to talk on the record about the Supreme Court and his jurisprudence in an interview with this newspaper. The article offered a rare insight into the thinking of one of the Court’s most influential Justices and the third longest-serving.

Justice Alito also dared to defend the Court from recent political attacks. This has upset the press and Senate Democrats, who are escalating. Ten of the 11 Democrats on the Judiciary Committee last week sent a letter to Chief Justice John Roberts demanding that he force Justice Alito to disqualify himself from specific cases based on the interview.

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They claim Justice Alito should recuse himself from hearing Moore v. U.S., a tax case the Court has accepted for the coming term. They claim it’s a conflict of interest because one of our interviewers was David Rivkin, who is on the legal team representing the plaintiffs in the case. Mr. Rivkin is well known to our readers as a frequent contributor on the law who has also interviewed Justice Clarence Thomas and Henry Kissinger for these pages.

The conflict charge is specious. Justice Alito said nothing about Moore and wasn’t asked about it in the interview. If a personal interaction with an appellate lawyer is disqualifying for the Justice, then the Justices would have to be hermits. They interact all the time with lawyers who argue cases before them.

The articles recounting the interview with Justice Alito said generous things about his jurisprudence, but that also isn’t a conflict. If it were, Justices would have to recuse from any case involving the actions of the President who appointed them because they are no doubt grateful to that President.

The Democrats also say Justice Alito should recuse himself from hearing any case that might come forward in the future concerning Congress’s attempt to regulate the Court. Justice Alito said in the interview that “no provision in the Constitution gives them [Congress] the authority to regulate the Supreme Court—period.”

The Justice was stating his opinion on a general constitutional principle. The question has never been litigated as far as we know. Justice Alito did acknowledge in the interview that Congress can cut the Court’s budget, and it has changed the number of Justices. But he wasn’t prejudging a case because there is no such case, and there may never be.

The press is portraying comments by Justice Elena Kagan

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Which gets us back to the Democratic recusal demands, and it’s important to understand how destructive they are. The decision of which cases to hear, and whether to sit on those cases, is central to the judicial role. If Senators or some outsiders can coerce Justices to recuse from certain cases, they are intruding on the authority and independence of a co-equal branch of government.

The canon of judicial ethics sets standards for recusal for lower-court judges, though individual judges typically decide for themselves when this obliges them to withdraw from a case. Those recusal standards are merely advisory for the Supreme Court, and for good reason. A lower court can easily substitute another judge in a case. The Supreme Court with only nine Justices cannot.

Removing a single Justice can change the result of a case, or even deny the litigants a clear decision if the Court deadlocks 4-4. All nine Justices agree on this point. In April the nine signed a “Statement on Ethics Principles and Practices” stating that “Justices have a duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy.”

The statement explained that individual Justices, rather than the entire Court, decide recusal issues. Letting the full Court or a subset decide on recusal “would create an undesirable situation in which the Court could affect the outcome of a case” by selecting which Justices could participate.

The Senators care nothing of this. Their concern is with the judicial result. That’s why the “ethics” bill that Sens. Sheldon Whitehouse and Dick Durbin have passed through the Judiciary Committee includes a provision that would make lower-court judges the arbiters of recusal decisions for the Justices.

This would open the door to widespread demands for recusal. Left and right would play this game, and liberal as well as conservative Justices would be the targets. This would turn nearly every case the Court hears into a political football and ultimately destroy public confidence in the judiciary. It would be nice if lawyers and judges would wake up to this threat and defend the Court so Justice Alito doesn’t have to do it by himself.