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Improper Opining

Justice Alito
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By: The Editorial Board – wsj.com – September 5, 2023

That’s the bizarre charge leveled Monday by Senator Ahab, er, Sheldon Whitehouse, in a letter to Chief Justice John Roberts. The Rhode Island Democrat wants the Chief Justice to investigate Associate Justice Alito for saying things the Senator doesn’t like.

Mr. Whitehouse is famous for publicly examining Brett Kavanaugh’s high-school yearbook for subtle messages of, well, we never could figure it out. And now he says Justice Alito committed “improper opining on a legal issue that may come before the court” in his recent interview with this newspaper.

Mr. Whitehouse writes in his letter that “during the interview, Justice Alito stated that ‘[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.’” The Senator says this is improper because the “comments appeared in connection” to his Supreme Court Ethics, Recusal and Transparency Act. Since the Supreme Court might someday rule on that legislation, the Senator says Justice Alito has violated judicial ethics.

This is nonsense even by Mr. Whitehouse’s standards. Justice Alito wasn’t opining on a case heading to the Court, or on Mr. Whitehouse’s legislation, which hasn’t passed the Senate and may never become law or the subject of litigation. The Justice was expressing his opinion on the general question of Congress’s power to regulate the Supreme Court.

This is no violation of Supreme Court obligations, and if it is then Justice Elena Kagan did the same when she also recently opined on Congress’s power to regulate the Court. Mr. Whitehouse’s letter doesn’t mention Justice Kagan’s comments, perhaps because they differed somewhat with Justice Alito’s. The point is that neither Justice did anything wrong in offering an opinion about the Constitution, Congress and the Court.

Mr. Whitehouse’s letter goes on to say Justice Alito was further guilty of “improper intrusion” by sitting down for an interview with our frequent contributor, the lawyer David Rivkin. One of Mr. Whitehouse’s obsessions is investigating Leonard Leo, who advised Donald Trump on his Supreme Court nominees, and Mr. Rivkin is representing Mr. Leo.

The Senator claims that the Journal interview was “coordinated with Mr. Rivkin’s efforts to block our inquiry.” In fact, the timing of the interview, which Mr. Rivkin conducted with Journal editor James Taranto, was planned months ahead to take place after the Supreme Court term ended. Mr. Whitehouse sees a political conspiracy everywhere, but sometimes an interview is merely an interview.

Our favorite line in Mr. Whitehouse’s letter says that “at the end, Justice Alito is the beneficiary of his own improper opining.” In other words, how dare Justice Alito defend himself from unfair attacks by Mr. Whitehouse, whose real goal is to coerce the Justices into doing his political bidding.

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Source: New Supreme Court Scandal: ‘Improper Opining’ – WSJ