Justice Samuel Alito fired back Friday at Democratic Illinois Sen. Dick Durbin’s demand that he recuse himself from a major tax case the justices are slated to hear during the coming term.
Durbin urged Chief Justice John Roberts in a letter early August to ensure Alito recuses from the upcoming case, Charles G. Moore et ux. v. United States, after the justice was jointly interviewed for the Wall Street Journal by a reporter and an attorney, David Rivkin, on the case.
Alito said there is “no valid reason” for him to recuse in a statement accompanying the court’s orders Friday, writing that Durbin’s argument is “unsound” and “fundamentally misunderstands the circumstances under which Supreme Court Justices must work.”
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“When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate,” Alito wrote. “The case in which he is involved was never mentioned; nor did we discuss any issue in that case either directly or indirectly.”
During Alito’s July 28 WSJ interview, he said that “no provision” of the Constitution allows Congress to regulate the Supreme Court.
“I know this is a controversial view, but I’m willing to say it,” he told the WSJ.
Alito wrote Friday that there was “nothing out of the ordinary” about the interview, noting that many justices have participated in media interviews with representatives from outlets that have been parties before the court. Some have even co-authored books with attorneys who practice before the Court, he noted.
In other scenarios, Alito says attorneys who have spoken “favorably or unfavorably” about the justices’ work appear before the court. Members of Congress who supported or opposed their nominations file briefs in cases and justices participate in cases where one of the attorneys is a former law clerk.
“If we recused in such cases, we would regularly have less than a full bench, and the Court’s work would be substantially disrupted and distorted,” Alito wrote.
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The case Durbin sought to have Alito recuse from considers whether Congress can tax income before it is received. Experts told the Daily Caller News Foundation it has the potential to undermine Democrats’ plans for a wealth tax.
“The Moores are facing income tax for income they never received,” Dan Greenberg, General Counsel at the Competitive Enterprise Institute, an organization representing the Moores, previously told the DCNF. “That’s not the way income tax is supposed to work.”
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