Whitehouse and Johnson Urge Chief Justice Roberts and the Judicial Conference to Act on Fact-Finding Process for Incidents Like Phone Call Between Justice Alito and President-Elect Trump

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.