Supreme Court Justice Alito rejects Democrats’ call to step aside from WA tax case

Justice Samuel Alito on Friday rejected demands from Senate Democrats that he step aside from an upcoming Supreme Court case because of his interactions with one of the lawyers, in a fresh demonstration of tensions over ethical issues.

As SCOTUSblog noted earlier this year, in Moore v. United States, the justices agreed to hear a challenge to the constitutionality of a provision of the 2017 Tax Cuts and Jobs Act known as the “mandatory repatriation tax,”  which required U.S. taxpayers who owned shares in foreign corporations to pay a one-time tax on their share of the corporation’s earnings, even if those earnings were reinvested in the corporation and the taxpayers did not receive them.

Article I of the Constitution requires Congress to apportion any “direct taxes” among the states. The 16th Amendment carves out an exception to that rule, allowing Congress to tax “incomes, from whatever source derived,” without apportioning that tax among the states, SCOTUSblog explains.

The case is the result of Washington couple Charles and Kathleen Moore facing an unexpected tax bill on a 13% stake in KisanKraft Ltd., an Indian company that provides small-scale farmers in India with affordable equipment, The Center Square said in 2022. This was unexpected because the tax bill – $15,000 – was on earnings never received by the couple, which were retained and reinvested by the company.

“They’ve never gotten a payment from that,” explained Sam Kazman of the Competitive Enterprise Institute, according to The Center Square. Kazman is co-counsel for the Moores in this case.

Alito attached an unusual statement to an otherwise routine list of orders from the court. “There is no valid reason for my recusal in this case,” Alito wrote in a four-page statement.

Democrats on the Senate Judiciary Committee have been highly critical of Alito and the rest of the court for failing to adopt an ethics code, following reports of undisclosed paid trips taken by Justice Clarence Thomas and, on one occasion, by Alito. The committee approved an ethics code for the court on a party-line vote, though it is unlikely to become law.

Last month, Senate Judiciary Committee Chairman Dick Durbin, D-Ill., and other Democrats on the committee sent a letter to Chief Justice John Roberts calling on Alito to not participate in a tax case that will be argued in the late fall.

The Democrats complained that Alito himself had cast doubt on his ability to judge the case fairly because he sat for four hours of Wall Street Journal opinion page interviews with an editor at the newspaper and David Rivkin, one of the lawyers for the couple suing over a tax bill. Rivkin also represents Leonard Leo, the onetime leader of the conservative legal group The Federalist Society, in his dealings with the Senate Democrats, who want details of Leo’s involvement with the justices. Leo helped arrange a private trip Alito took to Alaska in 2008.

In the second of two articles the interviews produced, Alito said Congress lacked the authority to impose a code of ethics on the Supreme Court.

The statement was issued a day after Justice Brett Kavanaugh said he is hopeful, without offering specifics, that the court will soon take “concrete steps” to address ethical concerns.

Justices typically do not respond to calls for their recusals, except in the rare instances in which they are made by parties to the case. But Alito said he was responding because of the attention the issue already has received.

He noted that many of his former and current colleagues have given interviews to reporters and then taken part in cases involving the reporters’ media outlets.

Describing the Democrats’ argument as “unsound,” Alito went on to write, “When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate. The case in which he is involved was never mentioned; nor did we discuss any issue in that case either directly or indirectly. His involvement in the case was disclosed in the second article, and therefore readers could take that into account.”

Contributing: Steve Coogan, L.B. Gilbert; The Associated Press