Alito rejects call to recuse in tax case

Justice Samuel Alito is emphatically rejecting calls for him to recuse himself from a closely watched tax case because he sat for interviews with a prominent conservative lawyer that became attention-grabbing articles for The Wall Street Journal opinion page.

In an unusual four-page statement accompanying a routine Supreme Court order list Friday morning, Alito turned down the request from Senate Judiciary Committee Democrats that he step aside from the case the court has agreed to hear this term involving the constitutionality of wealth taxes.

“There is no valid reason for my recusal in this case,” Alito wrote. “There was nothing out of the ordinary about the interviews in question.”

Senate Judiciary Chair Dick Durbin and all his fellow Democrats on the panel wrote to Chief Justice John Roberts last month, asking that Alito recuse himself from the tax case because one of the attorneys involved is David Rivkin, who conducted the recent interviews of Alito along with Journal editorial page editor James Taranto.

Durbin and his colleagues said it created “an appearance of impropriety” for Alito to take part in the tax case, Moore v. U.S., after using the interviews with Rivkin to “air his personal grievances.”

But Alito, an appointee of President George W. Bush, said requiring justices to recuse because they’d granted particular interviews was unworkable and the senators’ arguments were “unsound.”

“When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate,” Alito wrote, denying that he and the attorney spoke about “any issue in that case directly or indirectly.”

Rivkin declined to comment Friday on the justice’s statement.

Alito also pointed to interviews other justices have granted to various news outlets in recent years and noting that those justices didn’t recuse themselves from cases involving those news organizations. However, none of those instances appeared to involve the individual interviewer, though Alito also noted some instances in which lawyers argued cases at the high court and interviewed or wrote books with justices.

“We are often presented with cases in which one of the attorneys has spoken favorably or unfavorably about our work or character,” Alito added. “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’s pointed rejoinder to the recusal request comes as ethics concerns swirl around the court, along with calls for the justices to adopt a formal code of conduct and some mechanism to enforce it. Some Democratic lawmakers have sought to adopt legislation forcing the court to create an ethics code. The Senate Judiciary Committee advanced such a bill in July, although it appears to have little prospect of passage.

In the Wall Street Journal interview published in July, Alito indicated such legislation was unconstitutional because, he said, Congress has no authority to regulate the court. At least one of his colleagues, Justice Elena Kagan, has publicly disagreed.

The Senate Democrats’ letter to Roberts also called for Alito to recuse himself from any case related to ethics requirements at the Supreme Court. Alito’s statement Friday did not address that aspect of the letter.

Alito’s forceful retort came in the wake of other recent comments in which he lamented what he says is a failure by the legal establishment to push back against recent assaults on the court’s integrity.

“At a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself,” he told the Journal in July.

While parties occasionally file motions seeking a justice’s recusal, it is rare for outsiders uninvolved in a case to make such a motion and even more rare for a justice to publicly respond to it.

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Appeals court temporarily stays order for Texas to remove buoy barrier

The 5th U.S. Circuit Court of Appeals on Thursday temporarily halted a district judge’s order for Texas to remove from its river border with Mexico a thousand-foot-long buoy barrier put in place to deter crossings, a decision that will maintain the status quo as the appeals court considers a longer-term stay.

In documents filed on Thursday, Texas’ legal team pushed the court to issue the stay pending appeal, arguing that the state’s sovereignty and self-defense interests would be irreparably harmed — even if the court eventually ruled in favor of Texas. The state’s lawyers further argued that the barrier was necessary because the state is under “invasion” from drug cartels, leaning into a conservative legal theory that contends states have the constitutional power to enforce border security if its people are in imminent danger.

“The buoys were deployed under the Governor’s constitutional authority to defend Texas from transnational-criminal-cartel invasion,” the Texas lawyers wrote. “Moving the buoys exacerbates dangers to migrants enticed to cross the border unlawfully, and to Texans harmed by human trafficking, drug smuggling, and unchecked cartel violence.”

The Texas attorneys also criticized the district judge’s Wednesday interpretation of a law that allows the federal government to regulate waterways and ensure their navigability, which was a key part of the ruling. The judge had also argued that the barrier presented a risk to human life.

Gov. Greg Abbott’s office said on Wednesday that it was prepared to fight the case up to the Supreme Court if necessary.

The roughly 1,000-foot floating barrier, which Texas constructed in an attempt to obstruct movement across the Rio Grande, is made up of 4-foot spherical buoys connected by heavy metal cables, according to previous court documents. Roughly half of the barrier also contains an “anti-dive net” below it. The structure had drawn blowback from the state’s Democrats, the White House and Mexican government officials.

Lawyers for the Justice Department said Texas’ need for a stay was unnecessary, given that previous case discussion cited that the state needed only a few days to move the barrier, which it must do in coordination with the U.S. Army Corps of Engineers.

“Texas by its own admission certainly does not need to move any buoys before September 11 in order to comply with the district court’s order,” the Justice Department lawyers wrote. “A multi-day administrative stay threatens to delay Texas’s preparatory work — by, among other things, diminishing Texas’s incentive to coordinate with the Corps — and thereby threatens Texas’s ability to comply with the repositioning deadline prescribed by the district court, even if this Court (as is likely) ultimately declines to enter a stay pending appeal.”

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Kavanaugh predicts ‘concrete steps soon’ to address Supreme Court ethics concerns

CLEVELAND — Supreme Court Justice Brett Kavanaugh told a judicial conference on Thursday he hopes there will be “concrete steps soon” to address recent ethics concerns surrounding the court, but he stopped short of addressing calls for justices to institute an official code of conduct.

“We can increase confidence. We’re working on that,” Kavanaugh told the conference attended by judges, attorneys and other court personnel in Ohio. He said all nine justices recognize that public confidence in the court is important, particularly now.

Public trust in the court is at a 50-year low following a series of divisive rulings, including the overturning of Roe v. Wade federal abortion protections last year, and published reports about the justices’ undisclosed paid trips and other ethical concerns.

“There’s a storm around us in the political world and the world at large in America,” Kavanaugh said. “We, as judges and the legal system, need to try to be a little more, I think, of the calm in the storm.”

Justice Clarence Thomas acknowledged recently that he took three trips last year aboard a private plane owned by Republican megadonor Harlan Crow even as he rejected criticism over his failure to report trips in previous years.

Reporting by the investigative news site ProPublica also revealed that Justice Samuel Alito failed to disclose a private trip to Alaska he took in 2008 that was paid for by two wealthy Republican donors, one of whom repeatedly had interests before the court.

The Associated Press also reported in July that Justice Sonia Sotomayor, aided by her staff, has advanced sales of her books through college visits over the past decade. The AP obtained thousands of pages of documents that showed how justices spanning the court’s ideological divide lent the prestige of their positions to partisan activity — by headlining speaking events with prominent politicians — or to advance their own personal interests.

“My perspective is we’re nine public servants who are hard-working and care a lot about the court and care a lot about the judiciary as a whole,” Kavanaugh said. He added that he believes justices “respect the institution and want that respect for the institution to be shared by the American people, recognizing that people are going to disagree with our decisions.”

Besides Roe v. Wade, Kavanaugh pointed to a series of lesser noticed rulings that featured unusual line-ups that “didn’t follow some pattern” based on the political leanings of the justices’ appointing presidents.

Kavanaugh, 58, is one of three justices nominated by former President Donald Trump who have reshaped the court in recent years. He has sided with conservative majorities in affirmative action and student loan rulings, as well as in the Dobbs case that overturned Roe. He joined liberal justices this term in backing Black voters in a case out of Alabama and preserving a federal law aimed at keeping Native American children with Native families.

Kavanaugh took questions from Jeffrey Sutton and Stephanie Dawkins Davis, chief judge and judge, respectively, of the 6th U.S. Circuit Court, at the conference.

At one point brandishing a dog-eared copy of the Constitution plucked from his jacket, Kavanaugh urged the gathering to act with constitutional consistency, civility and respect — including taking special care that losing parties in lawsuits understand their rulings.

“I think this is important for all judges,” he said. “Respect for our system, which we all believe in, depends on the losing party still respecting the process. That’s hard to do. They’re not going to be happy, and so, to write an opinion the losing party understands and respects, they’re going to take the decision to heart.”

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‘Offensive’: Georgia prosecutor excoriates Jordan for probe into Trump charges

The Georgia district attorney at the heart of former President Donald Trump’s latest indictment on Thursday rebuked House Republicans’ investigation into her office, accusing them of blatantly trying to obstruct a criminal proceeding.

Fulton County DA Fani Willis on Thursday sent a fiery letter to House Judiciary Chair Jim Jordan, responding to his decision to launch an investigation into the Georgia office just hours before Trump appeared in court late last month on charges related to interfering in the 2020 election.

In the blistering, nine-page response, Willis called Jordan’s actions “offensive,” accused him of being “misinformed” and said it’s “clear that you lack a basic understanding of the law, its practice, and the ethical obligations of attorneys generally and prosecutors specifically.”

Jordan requested information about Willis’ use of federal funding and any conversations her office had with the Justice Department or special counsel Jack Smith, who has brought charges against Trump in both a classified documents case and over his actions during the 2020 election. But Willis, in her letter, said that Jordan’s “obvious purpose is to obstruct a Georgia criminal proceeding and to advance outrageous partisan misrepresentations.”

“Your attempt to invoke congressional authority to intrude upon and interfere with an active criminal case in Georgia is flagrantly at odds with the Constitution. … There is absolutely no support for Congress purporting to second guess or somehow supervise an ongoing Georgia criminal investigation and prosecution,” she added in the letter to Jordan.

A spokesperson for the Judiciary Committee chair didn’t immediately respond to a request for comment on Willis’ letter, a copy of which was obtained by POLITICO.

The back-and-forth comes after Willis charged Trump and 18 allies with racketeering charges for attempting to subvert President Joe Biden’s victory in the state during the 2020 election. Trump pleaded not guilty late last month to the charges, the fourth set he has faced over the past year.

Jordan’s request for information followed a familiar playbook Republicans have taken against Trump’s other two prosecutors, Smith and New York district attorney Alvin Bragg. The committee similarly sent a letter to Bragg in the spring, though that probe fell out of the spotlight as other Trump investigations moved to the forefront.

House Republicans have little recourse to fight Trump’s charges outside of their investigation powers. They could take up legislation that would let a former president or vice president move a case from state to federal courts, or try to target funds through spending bills, but the Democratic-controlled Senate would certainly block those efforts.

Willis, in her letter, did provide some details on federal funds that her office receives — one of Jordan’s requests. But the bulk of her letter offered several pointed criticisms of the House GOP’s request, including that it would involve sharing non-public information about an ongoing investigation. And she pointedly argued that it was time for him to “deal with some basic realities.”

“The basic premise of your letter is wrong. The criminal defendant about which you expressconcern was fully aware of the existence of the criminal investigation being conducted by the Fulton County District Attorney’s Office at the time he announced his candidacy for President. I have no doubt that many Americans are the subject of criminal investigations and prosecutions at any given moment,” Willis wrote.

“An announcement of a candidacy for elected office, whether President of the United States, Congress, or state or local office, is not and cannot be a bar to criminal investigation or prosecution,” she added. “Any notion to the contrary is offensive to our democracy and to the fundamental principle that all people are equal before the law.”

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Anti-affirmative action group drops admissions lawsuit against Yale

Students for Fair Admissions dropped its lawsuit challenging Yale University’s race-conscious admissions policies after the Supreme Court gutted the practice in June.

The anti-affirmative action group and the Ivy League school voluntarily agreed to drop the case after Yale agreed to make several updates to its admissions process ahead of the fall 2023 undergraduate admissions season.

Key context: SFFA filed its challenge in February 2021, but the lawsuit was paused as the Supreme Court weighed the group’s challenges against Harvard University and the University of North Carolina. In a ruling divided along ideological lines, the high court's six-justice conservative majority found that the universities discriminated against white and Asian American applicants by using race-conscious policies that benefited applicants from underrepresented backgrounds.

The lawsuit against Yale was similar to the one against Harvard and UNC, but stemmed from a Trump administration challenge that SFFA fought to keep alive in the courts. The Trump administration filed the lawsuit in October 2020 following a two-year investigation into the Ivy League institution's admissions practices. It was the strongest move by the Trump administration to rebuke the use of race in university admissions, and the Education Department and Justice Department investigation found that Yale discriminated against Asian American applicants.

Admissions changes at Yale: The joint stipulation filed Thursday in the United States District Court of Connecticut outlined the changes the university agreed to implement in light of the Supreme Court case and the voluntary dismissal. SFFA and Yale, according to the document, discussed the institution’s response to the Supreme Court case and Yale provide “supporting documentation” of its changes ahead of the dismissal. Here’s a rundown of the changes:

— Yale said it has updated its training materials to make clear that race cannot be used as a factor in admissions decisions.

— The university agreed to take “technological steps” to ensure that no one involved in admissions decisions has access to race data or a race “check-box” at any time during the admissions review cycle.

— Yale’s admissions office also agreed to not run any reports during the review cycle that would provide any aggregate data of the racial composition of admitted students.

— Race will also not be considered when calculating or awarding financial aid at Yale.

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Canada’s Conservatives recruit Brexiteer and ‘canceled’ former general to fire up grassroots

OTTAWA, Ont. — As Conservative Leader Pierre Poilievre strides into his party’s convention with a surge ahead of Prime Minister Justin Trudeau in the polls, a prominent U.K. Brexiteer says conservatives around the world should take note.

Lord Daniel Hannan tells POLITICO that Poilievre is one of the most interesting center-right leaders “on the international stage right now” for having “already transformed the demographics of his party, reaching out to young people.”

Hannan will share his praise of Poilievre with Canadians as the closing keynote speaker at this week’s Conservative Party convention, a three-day confab in Quebec City that will invigorate a party dead-set on ousting Canada’s eight-year old Liberal government in the next election.

The former member of European Parliament was even making the case last summer that Poilievre would be the ideal candidate to replace Boris Johnson as U.K. Tory leader.

Hannan made the cheeky endorsement in a July 2022 Daily Telegraph column, praising Poilievre as an “unapologetic tax cutter” who “does not hide from the culture wars,” and swooning over his “mastery of social media” to rapidly expand the party base — just the type of figure Britain’s Tories needed.

“It’s an absolute no-brainer,” he wrote.

Poilievre, who was elected party leader a year ago, is soaring in the polls as he hammers elites and the Liberal government while praising “common people,” the ordinary working Canadians struggling with high interest rates, inflation and a housing market many families have been priced out of — at a time when the global economy is still in the throes of disruptions from pandemic decision making and crises like the war in Ukraine.

Not at all like American political conventions, the Canadian events are perfunctory conferences for the grassroots where the backroom chatter among key players and organizers is more important to the party than what gets marquee billing on the floor — save for eruptions over controversial policies, like one that seeks to limit gender-affirming care.

The speakers’ lineup at the biennial confab has already turned heads, with one keynote by the former politician who had played an instrumental role pumping up Brexit and another by a retired Canadian general who made waves with culture-war comments controversial enough to force his resignation from a research organization’s board.

Hannan, a vocal critic of pandemic lockdowns and the head of a free market think tank called the Institute for Free Trade, is back by demand. He was a hit at the Conservatives’ 2018 convention in Nova Scotia, mocking Trudeau as a “bimbo supply teacher with a nice smile.”

He also made some pitches for updating trade policy: “What about a trade deal between the U.K. and Canada that simply said whatever is legal in your country is automatically legal in ours and vice versa? This applies to services. It applies to professional qualifications,” he said at the time. “And if we have such a deal between the United Kingdom and Canada, it becomes very difficult not to extend that same deal to the United States.”

Another speaker, retired Lt.-Gen. Michel Maisonneuve, will address the convention when it opens Thursday night.

His last big public speech earned him a standing O from senior Canadian military officers, followed by the boot from the board of a chronic pain research organization because of his comments slamming climate change policies and cancel culture. He sounded off on a range of Canadian culture-war points, like the removal of historical statues and apologies by leaders made to various groups. Maisonneuve has protested about being “canceled.”

The speech, which was quoted in the Ottawa Citizen newspaper, took aim at divisive political leaders, although named no one specific: “Can you imagine a military leader labeling half of his command as deplorables, fringe radicals and less-thans, and then expect them to fight as one?”

Stephen Saideman, director of the Canadian Defence and Security Network at Carleton University, attended that speech. He penned a warning in the Globe and Mail newspaper that Maisonneuve’s appearance could be a troubling sign Canada may follow in the U.S.’s footsteps with the increasing politicization of civil-military relations, via a political party giving a platform to Maisonneuve’s claims the military has become too woke.

Not that the Liberals haven’t also mixed military with politics. In 2015, Trudeau appointed former Lt.-Col. Harjit Sajjan as defense minister — an unusual move in Canadian politics to put a former military officer at the helm.

The Conservatives also have saved a speaking slot for former Defense Minister Peter MacKay, a statesmanly figure in the party with a vintage from the Stephen Harper-era who sought party leadership in 2020 with a more centrist appeal and who once campaigned for Canada to meet its NATO spending target.

There’s a balancing act at play in managing all the theatrics and messaging.

“For the Conservative Party of Canada to be successful, it still has to subscribe to a big tent party philosophy,” said J.P. Lewis, a political science professor at the University of New Brunswick with expertise in Canada’s conservative movement.

That even speaks to the mix of characters in play — more polemical figures and old guard speakers like MacKay.

“Maybe just to contrast with the Republican Party, for our party to the right, there’s still an attempt to maintain that balance, … maintain that coalition of right-of-center voters — and politicians, for that matter.”

The main event will be the speech by Poilievre, who won leadership a year ago and has emerged in Canadian politics as the “clear front-runner” based on his strong polling, on the back of “fatigue” with the Trudeau government, Lewis notes — although it could still be a year or two before the next election is called.

At the Liberals’ May convention, Justin Trudeau took campaign-style shots at Poilievre, dismissing his rival as cartoonish: “His slogans and buzzwords are not serious solutions to the serious challenges we’re facing.”

Poilievre, who has struck a nerve of collective anxiety about squeezed household finances, fired back at Trudeau when interest rates went up in June: “You and your spending, your out-of-control debt and taxation are leading us headline into a full-scale financial crisis. And I will not let you do it.”

The Conservative leader takes the stage prime time on Friday, after working on softening his tone over the summer, shedding his old image of an attack-dog politician to appear more relatable.

He’ll have everyone’s attention.

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Miami school board again shuts down LGBTQ month recognition

TALLAHASSEE, Fla. — School board members in Miami rejected a proclamation early Thursday morning that would have recognized October as “LGBTQ history month” in the latest example of Florida’s parental rights laws influencing public education.

The decision, which came around 1 a.m. after hours of public comment and debate, illustrates how local education policy has changed since 2021, when Miami-Dade County school board members last acknowledged LGBTQ history month. Over the last two years, the school board in Miami, like many other counties, has been reshaped with candidates aligned with Gov. Ron DeSantis and conservative leaders who support the parental rights policies labeled as “Don’t Say Gay” by opponents.

“This is about someone’s sexual preference, and not a cultural issue,” said Roberto Alonso, a Miami-Dade County school board member endorsed by DeSantis who voted against the recognition. “It’s imposing ideologies and a sexual discussion that should not be happening inside of our schools.”

The recognition was shut down by a 5-3 vote following dozens of public speakers filling the school board auditorium representing both sides of the issue, reminiscent of the scene that played out last year when a similar item was proposed and also denied.

The idea was introduced to herald October as a reminder “to all cultures within our wider community of the important roles that LGBTQ people have taken in shaping the social, historical, legal, and political worlds we live in today.” It specifically stated that the board’s observation would be “in accordance with state and federal law” in hopes of avoiding a confrontation with the controversial parental rights law.

Better known as “Don’t Say Gay,” the policy prohibits teachers from leading instruction on gender identity and sexual orientation to pre-K through grade eight students and was expanded this year to restrict the usage of pronouns in schools. Under a separate Board of Education rule, teachers run the risk of losing their educator credentials for leading instruction on those topics to students through 12th grade. These policies are a key part of Florida’s attempt to root out traces of liberal “indoctrination” in local schools, particularly centered on lessons and books about race and sexuality.

Supporters of the proclamation, such as board member Lucia Baez-Geller who introduced it, claimed that the proposal was a “ceremonial” and “nonbinding” way to support LGBTQ students and families. Opposition to the recognition, according to Baez-Geller, was sparked by the “anti-LGBTQ rhetoric and agenda” from the DeSantis administration and Legislature. She noted that the idea was not seen as controversial when it passed 8-1 two years ago.

“This didn’t happen in 2021 before the Parental Rights in Education bill,” Baez-Geller said during the meeting.

“It’s the cultural politics, it’s the political agendas, it’s the war on minorities, it’s the war on people who already are struggling,” she added.

But the recognition was a nonstarter for the conservative-leaning members of Miami’s school board, including two members endorsed — and donated to — by DeSantis and state Republicans. They claimed the proposal violated the “intent” and “spirit” of the parental rights laws and rejected it in support of parents who want to “avoid the sexualization” of their children. Two other members who voted against the measure were appointed by DeSantis earlier this year.

“I really don’t know how a teacher is expected to recognize, observe and celebrate this month without being perceived by students’ parents as instruction or without crossing the line and becoming instruction,” said board Vice Chair Danny Espino, a DeSantis appointee.

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