The Supreme Court on Tuesday will hear arguments in what The Wall Street Journal’s editorial board called a potentially “landmark” tax case in which the court will “consider the legality of a form of wealth tax that is the long-time dream of the political left.” One of the case’s notable features doesn’t involve the legal issue presented but rather that one of the editorial board’s favorite justices, Samuel Alito, declined to recuse from it.
The recusal issue arose from fawning interviews published in the Journal’s opinion pages, because they were conducted in part by David Rivkin, a Republican lawyer and commentator who represents Charles and Kathleen Moore, the petitioners in Tuesday’s case, Moore v. United States. Indeed, one of the interviews was conducted while Rivkin was trying to convince the justices to take up the case. Rivkin’s petition was filed in February, and the first Alito interview was published in April, after what Rivkin and his co-author, WSJ editorial features editor James Taranto, described in their piece as “a mid-April interview in his [Alito’s] chambers.”
The court granted review in June, to the delight of the WSJ board. In the next Rivkin/Alito interview, published in July, Rivkin and Taranto parenthetically noted Rivkin’s involvement in the appeal.
If all of this looks a bit shady to the average reader, it wasn’t enough for Alito to step aside. The Republican appointee published a statement in September explaining why he declined to recuse. As I observed at the time, it wasn’t a convincing explanation.
Defending himself in the statement, Alito pointed to that disclosure in the July piece, writing that Rivkin’s “involvement in the case was disclosed in the second article, and therefore readers could take that into account.”
But take what “into account” exactly? Alito didn’t elaborate, but the disclosure shows that he and Rivkin understood that it was worthy of notation for some reason. It…
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