SCOTUS Order Day (Alito Time)

The Supreme Court released a, for now, thin November argument schedule, including an important case about the limits of disarming people under domestic violence orders. The assumption is that it will be upheld by something like 6-3 (at least).  

I won't even link Kavanaugh promising that the Supreme Court is (really!) something about ethics.  Sure dude.  A bit later on how this is bullshit and we can't just rely on them to act alone.  

And, remember that praying coach subject of a case that not only (the ghost of Scalia smiles) truly buries the Lemon Test, but is infamous for false facts?  He eventually got his job back, after being on the lecture circuit, but resigned after one game.  

Okay.  Today was the third and final summer order list.  The first two were nothingburgers.  This one was of a similar caliber as a whole. But, wait, why is it six pages long? A statement by Justice Alito? Why yes.  

Chris Geidner (among others) covered the ethical problems with Alito taking part in a case involving a lawyer who worked on the puff Wall St. Journal Alito piece.  The case, of some significance, was chosen as the piece was being worked on.  He summarizes:

My broad premise is that because Rivkin is a partner at Baker & Hostetler LLP and counsel to the Charles and Kathleen in Moore v. United States, a major tax case set to be heard by the Supreme Court in its next term, Rivkin also being part of an ongoing “interview” team helping the justice get out his message(s) of grievance raises questions about Alito’s objectivity to a reasonable observer. 

Sen. Sheldon Whitehouse on Twitter today suggests the guy's involvement could have been a pressure tactic.  

And, this was no one-off. Alito was already in ethical gray-zone land, and his involvement with the piece was just one of a stream of WSJ-related events (including probable leaks during the Dobbs case, even if his chambers did not also leak the actual opinion).  

Alito referenced a letter to Roberts from Sen. Durbin (signed by each Democratic member of the Senate Judiciary except for Sen. Ossoff) asking him to ensure that Alito was recused.  Alito refuses, citing his "duty" to take part.  Prof. Eric Segall noted that only four times (including this) did a justice explain their failure to recuse.  

He did not specify in his tweet (these days called "posts"), but they would be an early defense by Rehnquist, the Scalia Cheney energy case, Kagan's discussion about her involvement in the PPACA matters, and this one. In each case, the justice defended taking part in cases.  

I think Rehnquist and Scalia (somewhat less) had dubious arguments. I disagree with Segall on Kagan.  His basic point holds: it is bad policy to have the justices by their lonesome to make the call here.  That is the norm and in one collection of letters of Justice William O. Douglas, he includes a defense of the policy.  There should be an ethics committee of some sort that makes the call or at least provides an advisory opinion.  

Alito, like in his op-ed and other writings, repeatedly sounds aggrieved.  Geidner correctly compares him to a FOX News analyst.  Rivkin (a long-term conservative activist) is allegedly just your average journalist, who is "much published" (he has various flourishes like this), akin to various others who interviewed justices.  The fact that the interviews were not in the midst of cases the "journalists" had pending is skipped over.

Alito notes that justices "had no control" over what lawyers parties choose to represent him.  No kidding.  Alito does have control over when to take part in major articles, especially in the middle of extended ethical controversy.  Amy Howe references a statement by Fix the Court:

Alito is free to give multiple interviews. But Rivkin’s appearance “as a co-byline in both the first interview, when his petition was pending, and in the second interview, given just after the petition was granted, raises ethical questions that seem obvious to everyone but Alito and require disqualification,” Roth concluded.

After previewing the overall tone by calling Alito's statement "crap," Geidner also has a follow-up.  Alito has recused in the past when his investments were involved. There is an appearance of impropriety here, more so than in one case where Sotomayor recused because a friend of hers was involved (one of the faithless electors' cases).  It would not take much for him to recuse here.  His vote is from what I can tell not likely to matter.  But, like Thomas with his public statement, he went with the "f u."

[Chris Geidner suggested on Friday that he was writing an article on the Alito issue.  I did not see one after writing this but think he still might eventually have one by the beginning of the week.]

FU to the Supreme Court, including some half-measures they might eventually get around to crafting involving ethics.  This shows you cannot be trusted on your own.  The Senate Democrats ethics bill should be passed.  If Republicans block it, including Senate Republicans, it is yet another example of why they should not be trusted with any real power.  They are unfit to lead.  

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An execution might occur later this month and we are slowly approaching the beginning of the new term of this corrupt Court.