Alito’s 'unmistakable breach' warrants recusal in Trump case: judicial policy expert

09 January 2025

Justice Samuel Alito accepting a telephone call from Donald Trump, hours before the President-elect would file a motion with the U.S. Supreme Court to delay sentencing in his criminal business fraud case, was an “unmistakable breach” of ethics and judgment, and warrants recusal from the case, a longtime judicial ethics and policy expert says.

Alito told ABC News the two did not discuss the case, and reportedly said Trump called for a job reference regarding a former clerk of Alito’s.

“It’s obviously an unmistakable breach of protocol,” Gabe Roth, founder and executive director of the nonpartisan, nonprofit organization Fix the Court, told NPR‘s Michel Martin Thursday morning. Alito has “got to know better,” and “should have not taken the call, and known that this is inappropriate.”

“You have an individual in the President-elect who is petitioning the Supreme Court related to his sentencing in the hush money case, a Supreme Court justice, who frankly should know better,” he explained. “This conversation should not have taken place.”

Roth said “it doesn’t make sense,” and that the former clerk, whom he named as Will Levi, “has plenty of other credentials.”

“He worked for [Republican U.S. Senator] Mike Lee, he could have Mike Lee call.”

“He’s been a partner in the law. His dad’s a former federal judge, his grandfather was the Attorney General.”

Roth said that “this episode shows the justices don’t really care about the ethics because they know that no one’s going to stop them from doing whatever it is that they want to do.”

And while he doesn’t see that any laws were broken, Roth said, “there are certain protocols that if you are a Supreme Court justice, you really don’t intermingle with the executive branch or the incoming executive branch,” and, “especially at a time when President Trump we know is going to have all these executive orders coming down the pike whose fate will be decided by the justices, this to me just seems like an opportunity for him to have a an audience before one of the nine people determining his administration’s fate in so many of these issues.”

Calling the Trump “hush money” case “fairly significant,” Roth asked if the Supreme Court justices are “going to stand for the rule of law and stand behind what the New York jury” decided.

Alito’s breach “potentially could violate a rule. There is a federal law that applies to the Supreme Court justices that says, a justice shall recuse himself from a case when his impartiality might reasonably be questioned. People are a reasonably questioning Alito’s impartiality given this call with Trump, so that would mean he would be required to recuse from any Trump related cases.”

But, Roth acknowledges, “there is no way to enforce that” because it’s “all self enforcing and self policing.”

“Usually the justices are better at at hiding their ethnics issues, but I guess, you know, now that the Supreme Court green lit near absolute immunity for the president, and Congress has refused to pass any sort of enforceable ethics for the justices, it looks like they’re not even trying to hide it.”

Listen to Roth’s remarks via NPR below or at this link.