Thomas, Alito go on the attack over Supreme Court ethics

by Zach Schonfeld - 08/31/23 4:27 PM ET

Conservative Supreme Court Justices Clarence Thomas and Samuel Alito are increasingly going on offense as they seek to push back against a firestorm of ethics controversies.

When Thomas’s annual financial disclosure was released Thursday, the justice’s personal attorney simultaneously circulated an unusual six-page statement tearing into “left wing” groups that he said had “weaponized” ethics against Thomas.

Alito earlier had spoken out under his own name in a rare op-ed and interview he gave to The Wall Street Journal’s conservative-leaning opinion section.

Alito in the interview called recent stories about him “nonsense” and suggested the Supreme Court bar should be defending him.

“But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself,” Alito told the paper.

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The conservative justices’ increased assertiveness comes as they steadily draw the ire of Democrats and judicial watchdog groups, who are pushing for stronger ethics standards at the Supreme Court.

Yet the chances of winning tougher ethics reforms over the court is seen as unlikely. Getting legislation through the Senate looks impossible with opposition from GOP Leader Mitch McConnell (R-Ky.), even though some GOP senators have signaled they’d like the justices to better police themselves.

Public statements from Alito and Thomas’s attorney give the impression that both justices are sick of sitting back and taking criticism from the media and Senate Democrats.

The written remarks by Elliot Berke, Thomas’s personal attorney, were particularly striking Thursday.

“No Justice, Justice Thomas included, should be subjected to such political blood sport,” Berke wrote. “It is painfully obvious that these attacks are motivated by hatred for his judicial philosophy, not by any real belief in any ethical lapses.”

Supreme Court Justice Clarence Thomas and fellow conservative justice Samuel Alito are going on the offensive against a firestorm of ethics controversies. (AP Photo/John Amis, File)

Berke issued his lengthy statement as the federal court system’s administrative office released Thomas’s 2022 financial disclosure. Both he and Alito received 90-day extensions from the May deadline.

Thomas’s form disclosed three private jet trips he accepted last year from Harlan Crow, a real estate magnate and GOP megadonor, and amended several mistakes from previous years.

Crow’s friendship with Thomas came under scrutiny after a series of ProPublica reports earlier this year detailed an undisclosed real estate transaction between the two men and years of trips that Thomas accepted.

Democrats and judicial watchdog groups responded by renewing a push to require the Supreme Court to adopt a binding code of ethics, arguing the justices could not be trusted to police themselves. A few Democratic lawmakers even called for Thomas to be impeached.

The controversies arose as the Supreme Court issued a series of decisions written by the new conservative majority that radically shifted American life. Most notably, the court last summer struck down the Roe v. Wade decision on abortion, a ruling that has had dramatic repercussions across the country.

Alito wrote that opinion, while Thomas famously issued a concurring opinion that suggested the court’s rationale for determining there was no right to abortion could be used for court decisions on such issues as same-sex marriage and contraception.

Supreme Court Justice Samuel Alito testifies before the House Appropriations Committee on Capitol Hill in Washington, March 7, 2019. (AP Photo/Susan Walsh, File)

While the debate over Supreme Court ethics is unrelated to any specific court case, and although the activities of liberal justices have also come under some scrutiny, the issue has felt particularly personal at times given the strong views in the political sphere over the direction of the court.

“The Left has been out to get Justice Clarence Thomas for over 30 years. They started before he was even confirmed,” House Judiciary Chairman Jim Jordan (R-Ohio), House Republican Conference Vice Chairman Mike Johnson (R-La.) and Rep. Chip Roy (R-Texas) said in a joint statement Thursday.

“Despite their baseless attacks, he has not stopped standing up for the rule of law and the Constitution,” they continued. “He is a threat to the radical progressives’ agenda because he openly defies them and he cannot be intimidated.”

Days after Thomas’s ethics woes first surfaced in April, Alito sat down for an interview with The Wall Street Journal’s opinion section. He was hesitant to discuss the revelations about Thomas at the time, however.

“I’ll stay away from that,” Alito said when asked about the ProPublica story.

But in the months since, Alito has come out swinging.

When ProPublica turned its attention to Alito and reached out for comment in June about an undisclosed Alaskan fishing trip he accepted years earlier, the conservative justice took the extraordinary step of penning an op-ed in The Wall Street Journal to defend himself before ProPublica could hit publish.

“Justice Samuel Alito: ProPublica Misleads Its Readers,” the headline read.

Weeks later, Alito sat down with the Journal’s opinion section for another interview. One of the piece’s authors, David Rivkin, is an attorney representing a party in a major tax case the Supreme Court agreed to hear for its upcoming term.

As in his earlier sit-down, the writers asked Alito about ethics. But this time, Alito didn’t stay away. He made clear his views on Democrats’ bill that would require the Supreme Court to adopt a binding code of ethics.

“I know this is a controversial view, but I’m willing to say it,” Alito told the Journal. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

The interview only further infuriated Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), who fired back by saying Alito is “not the 101st member” of the Senate.

Thomas, on the other hand, has not addressed his ethics controversies under his own name ever since he issued an April statement about ProPublica’s initial story, more than 24 hours after it was published.

Instead, his allies have gone on the offensive.

Mark Paoletta, a longtime friend of the Thomas family and a lawyer who represents the justice’s wife, has regularly attacked notions that Thomas acted unethically on X, the platform formerly known as Twitter.

He also authored multiple Wall Street Journal op-eds defending Thomas.

“ProPublica limits its investigations to conservative justices — ignoring, for instance, that Justice Stephen Breyer took at least 17 trips, eight of them international, funded by the Democratic Pritzker Family organization,” Paoletta wrote in one published earlier this month. “Its reporters have every right to investigate whatever they want, but they also have a duty to get their facts straight.”

This week, Fox News Digital published a letter signed by more than 100 of Thomas’s former law clerks defending his integrity.

And now, Thomas’s attorney who helped him prepare his latest financial disclosures is also joining the public pushback.

“While public figures may be the targets of weaponized ethics allegations, all Americans are its victims. Trust in our national institutions is eroding fast enough — with poisonous consequences for our country — without partisans, sworn to uphold the Constitution, abusing it and their own privilege to score cheap political points for a few slow news cycles,” Berke wrote in his Thursday statement.

“And yes of course, our public officials are not above the law, but they are also entitled to rely on the rules put in place to govern their conduct,” he continued. “So, the ethics wars need to stop: They are not only unfair to our government officials, but also undermine public confidence in our republic.”