Securing Growth and Robust Leadership in American Aviation Act--Motion

Floor Speech

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Mr. WHITEHOUSE. Mr. President, last week, I spoke about the scheme of corruption by rightwing billionaires out to capture the Supreme Court. I mentioned their lawyers' blockade of our investigation into this corruption and described how little sense their lawyers' arguments made.

That brings us to this speech today. The connection is that those, in my view, nonsense lawyers' arguments badly needed propping up. And who should come to the rescue but U.S. Supreme Court Justice Sam Alito. Alito's actions propping up that argument caused me to write this ethics complaint against him.

Mr. President, this complaint highlights some of the Supreme Court's current legitimacy problems, which are legion. One is that the Court has no procedure for an ethics complaint. I had to write to Chief Justice Roberts, both in his capacity as Chief Justice and in his capacity as Chair of the Judicial Conference, because, unlike in every other Federal court, there is no clarity about process.

The Supreme Court has no formal process for receiving or investigating such complaints, so they go there to die. Complaints about Supreme Court Justices have sometimes been referred to the Judicial Conference, and there, they have mostly disappeared. So it is a mess.

The Supreme Court--the body with the highest responsibility to police proper procedure and fair factfinding throughout the rest of government--has no clear and proper procedure for itself. That is weird, and that is wrong.

Nothing prohibits the Court or the Judicial Conference from adopting procedures to address complaints of misconduct by the Justices. They just haven't bothered to. The most basic modicum of any due process is fair factfinding, but they have no process at all to find out even what the facts are. That is simply not defensible. That has to change, and my complaint presents the Court and the conference that opportunity.

Now let's move from procedure to the substance of my complaint about Justice Alito. At one level, it is an obvious slam-dunk ethics violation. At another, it will take a lot more digging. Let me explain.

My complaint relates to a so-called ``interview'' published on the Wall Street Journal's editorial page July 28 of this year. How it is both an interview and on the Wall Street Journal's editorial page, I am not going to explore.

Justice Alito was the person ``interviewed.'' His ``interviewers'' were David Rivkin and James Taranto. In this interview, Justice Alito offered his legal opinion that ``[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court--period.'' That is the end of his quote.

That comment wasn't just floating in the ether; it was related to my Supreme Court ethics bill, the Supreme Court Ethics, Recusal, and Transparency Act, which the Senate Judiciary Committee had advanced just 1 week before, and it also related to an array of congressional oversight information requests from the Senate Judiciary Committee and from the Senate Finance Committee.

More on that later. Back to the slam-dunk part. I sit on the Senate Judiciary Committee, where we hear in every Supreme Court confirmation hearing that it would be improper, that it would be wrong even in a confirmation hearing to express opinions on matters that might come before the Court. Well, obviously, Alito's interview comments--his Wall Street Journal editorial page ``opining''--touched on a matter that might come before the Court. That is the slam dunk.

Look at what other Justices have testified about this opining problem, but let's start with Alito himself, who testified in his confirmation hearing that it would be ``improper'' and a ``disservice to the judicial process'' for a Supreme Court nominee to comment on issues that might come before the Court. His words.

Consider also Justice Thomas, who testified that such opining would ``leave the impression that I prejudged this issue,'' which would be, he said, ``inappropriate for any judge who is worth his or her salt.''

Justice Kagan told the committee it would be ``inappropriate'' for her to ``give any indication of how she would rule in a case'' even ``in a somewhat veiled manner.''

Justice Kavanaugh testified that nominees ``cannot discuss cases or issues that might come before them.'' He went on that prejudging an issue in this manner is ``inconsistent with judicial independence, rooted in Article III.'' He continued that ``litigants who come before [the Court] have to know we have an open mind, that we do not have a closed mind.'' He quoted Justice Ginsburg: ``No hints, no forecasts, no previews.''

Justice Gorsuch went one better in his confirmation hearing. He actually testified that this ``no opining'' rule applies to discussions about Supreme Court ethics--the exact topic of Justice Alito's Wall Street Journal opining.

Senator Blumenthal on the committee had asked Judge Gorsuch about proposed ethics rules for the Supreme Court and whether they would violate separation of powers. Gorsuch answered:

Senator, I am afraid I just have to respectfully decline to comment on that because I am afraid that could be a case or controversy, and you can see how it might be. I can understand Congress' concern and interest in this area. I understand that. But I think the proper way to test that question is the prescribed process of legislation and litigation.

In sum, the Court itself is plainly on record that this sort of opining is wrong. So that is broken rule one, just offering the opinion, but it gets worse. This was not just general opining out into the general ether. Alito's comments referred to a specific, ongoing legal dispute. Let me explain.

There are ongoing Senate investigations into the scandal of secret billionaire gifts to certain Justices. The Senate Judiciary Committee is investigating reports that Supreme Court Justices accepted and improperly failed to disclose, in violation of Congress's disclosure laws, lavish gifts from billionaire benefactors seeking to influence the Court. The Senate Finance Committee is investigating Federal tax compliance regarding those undisclosed gifts. Were tax laws broken? Were proper declarations made?

In those congressional investigations, requests for information have been sent out. In response to those requests, objections have been raised. Here is where Alito comes in. The objections by the billionaires' lawyers assert that Congress has no constitutional authority to legislate in this area--hence, no authority to investigate. They assert--in my view, plainly wrongly--that our constitutional separation of powers blocks any congressional action in this area, which in turn, they assert--also plainly wrongly, in my view--blocks any congressional investigation.

Set aside the demerits of that argument--for which I refer you to the lawyers' letters I added to the record in my previous speech and my own takedown of that argument--sound or unsound, the point is, it is their argument in that ongoing dispute.

In that ongoing dispute, Justice Alito's Wall Street Journal comments prop up that argument. The language is nearly identical. You can compare it for yourself. In fact, lawyers for some of the billionaires to whom we have sent information requests have actually quoted Justice Alito's comment in declining to respond.

So this is not just some improper general opining; it is a Supreme Court Justice leaning in to one side of a specific ongoing dispute and being used and quoted by one side of a specific ongoing dispute. That is pretty bad. It gets worse.

One of the interviewers in that Wall Street Journal interview, Attorney David Rivkin, wasn't just some interviewer; he is the attorney for a party in that specific ongoing dispute. Rivkin is the attorney making the precise legal argument that Alito echoed, and he is making it in that ongoing dispute. None of this, of course, was disclosed in the so-called ``interview.''

A logical mind would rightfully ask whether Justice Alito opined on this matter at the behest of his interviewer, Attorney Rivkin. A suspicious mind would even wonder whether Attorney Rivkin prepped his witness, as lawyers are wont to do. With no means of factfinding, all this remains unknown.

Bad enough to opine on some general matter that may come before the Court; worse when the opining brings a Supreme Court Justice's influence to bear in a specific ongoing legal dispute; and worse yet when the influence of the Justice might have been summoned by counsel to a party in that dispute.

The timeline is suspicious. Mr. Rivkin's interview with Justice Alito was reportedly conducted in early July 2023. Well, on July 11, Chairman Durbin and I had sent a letter to Rivkin's client in that dispute inquiring about undisclosed gifts and travel provided to Justices. On July 20, the Senate Judiciary Committee voted to advance my judicial ethics bill.

By the way, the Rivkin-Alito Congress-has-no-authority argument fared very poorly that day in the committee.

On July 25, Mr. Rivkin, by letter, refused to answer our information requests on the purported ground that ``any attempt by Congress to enact ethics standards for the Supreme Court would falter on constitutional objections.'' Three days later, on July 28, comes the supportive opining from Justice Alito about those constitutional objections.

There are a lot of questions that need answering under oath about how this mess played out.

But wait, there is more. Attorney Rivkin's client in that dispute has a relationship with Justice Alito. He is a friend and ally of Justice Alito's. Rivkin's client is Leonard Leo. Leo is not just a friend and ally of Alito's. Our oversight questions that Attorney Rivkin is blocking relate to Mr. Leo's actions to facilitate gifts for Supreme Court Justices from rightwing billionaires of free and undisclosed transportation and lodging. Mr. Leo didn't just facilitate; he was Justice Alito's companion on the luxurious Alaskan fishing trip in 2008 that rightwing billionaires funded.

The relationship goes back. Leo's political organization ``had run an advertising campaign supporting Alito in his confirmation fight, and Leo was reportedly part of the team that prepared Alito for his Senate hearings.''

So it appears that Justice Alito, A, improperly opined in the Wall Street Journal, B, to influence a specific ongoing dispute, C, possibly at the behest of counsel in that dispute, and D, to the benefit of a personal friend and ally.

None of that was disclosed in the interview either, and it brings us to the last and most damning point.

Justice Alito's opining, potentially at the behest of his friend and ally's lawyer, props up an argument being used to block inquiry into undisclosed gifts and travel received by Justice Alito himself. Justice Alito himself is the ultimate beneficiary of his own improper opining. It comes full circle.

In the worst-case scenario, Justice Alito broke the rules against opining in order to facilitate an organized campaign to obstruct congressional investigation into tens of thousands of dollars in gifts he, Alito, personally received and doesn't want investigated.

Whether Justice Alito was unwittingly used to provide fodder for such interference or intentionally participated in that interference plan and whether he did it to protect the rightwing billionaires or himself or both, those are questions whose answers require additional facts.

The heart of any due process is a fair determination of the facts. Uniquely in the whole of government, the Supreme Court has insulated its Justices from any semblance of fair factfinding. The obstruction of our inquiries by Mr. Rivkin and Mr. Leo, fueled by Justice Alito's opining, prevents Congress from gathering those facts, and the Supreme Court won't even look. That can't be--not in a nation of laws. That is flagrantly, obviously wrong.

So I have asked the Chief Justice or the Judicial Conference to take whatever steps are necessary to develop a process to investigate this affair and provide the public with the prompt and trustworthy answers it deserves. The Supreme Court's legitimacy cannot stand on an edifice of obstruction, secrecy, and lies.

To be continued, Mr. President.

Dear Chief Justice/Chairman Roberts: I write to lodge an ethics complaint regarding recent public comments by Supreme Court Justice Samuel Alito, which appear to violate several canons of judicial ethics, including standards the Supreme Court has long applied to itself.

I write to you in your capacity both as Chief Justice and as Chair of the Judicial Conference because, unlike every other federal court, the Supreme Court has no formal process for receiving or investigating such complaints, and asserted violations by justices of relevant requirements have sometimes been referred to the Judicial Conference and its committees. I include all justices in carbon copy because I am urging the Supreme Court to adopt a uniform process to address this complaint and others that may arise against any justice in the future.

The recent actions by Justice Alito present an opportunity to determine a mechanism for applying the Judicial Conduct and Disability Act to justices of the Supreme Court. Nothing prohibits the Court or the Judicial Conference from adopting procedures to address complaints of misconduct. The most basic modicum of any due process is fair fact-finding; second to that is independent decision-making. background

Some of the background facts here were related by members of the Senate Judiciary Committee who signed a letter to you dated August 3, 2023. As that letter explains, the Wall Street Journal on July 28, 2023, published an interview with Justice Alito conducted by David Rivkin and James Taranto. Justice Alito's comments during that interview give rise this complaint. The interview had the effect, and seemed intended, to bear both on legislation I authored and on investigations in which I participate.

During the interview, Justice Alito stated that ``[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court--period.'' Justice Alito's comments appeared in connection to my Supreme Court Ethics, Recusal, and Transparency Act, which the Senate Judiciary Committee had advanced just one week before the publication of this interview. That bill would update judicial ethics laws to ensure the Supreme Court complies with ethical standards at least as demanding as in other branches of government.

Justice Alito's comments echoed legal arguments made to block information requests from the Senate Judiciary Committee and the Senate Finance Committee, on both of which I serve. Those arguments assert (in my view wrongly) that our constitutional separation of powers blocks any congressional action in this area, which in turn is asserted (also wrongly, in my view) to block any congressional investigation. Sound or unsound, it is their argument against our investigations, as reflected in the letter appended hereto. The subjects of these committee investigations are matters relating to dozens of unreported gifts donated to justices of the Supreme Court.

As the author of the bill at issue, and as the only Senator serving in the majority on both investigating committees, I bring this complaint. Improper Opining on a Legal Issue that May Come Before the Court

On the Senate Judiciary Committee, we have heard in every recent confirmation hearing that it would be improper to express opinions on matters that might come before the Court. In this instance, Justice Alito expressed an opinion on a matter that could well come before the Court.

That conduct seems indisputably to violate the Code of Conduct for United States Judges. Canon 1 emphasizes a judge's obligation to ``uphold the integrity and independence of the judiciary''; Canon 2(A) instructs judges to ``act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary''; and Canon 3(A)(6) provides that judges ``should not make public comment on the merits of a matter pending or impending in any court.'' These canons help ensure ``the integrity and independence of the judiciary'' by requiring judges' conduct to be at all times consistent with the preservation of judicial impartiality and the appearance thereof.

The Court's Statement of Ethics Principles and Practices, ``to which all of the current members of the Supreme Court subscribe,'' concurs. That document makes clear that, before speaking to the public, ``a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public. There is an appearance of impropriety when an unbiased and reasonable person who is aware of all relevant facts would doubt that the Justice could fairly discharge his or her duties.'' These same precepts are also enforced through the federal recusal statute, which requires all federal justices and judges to recuse themselves from any matter in which their impartiality could reasonably be questioned.

Making public comments assessing the merits of a legal issue that could come before the Court undoubtedly creates the very appearance of impropriety these rules are meant to protect against. As Justice Kavanaugh pointed out, prejudging an issue in this manner is ``inconsistent with judicial independence, rooted in Article III,'' because ``litigants who come before [the Court] have to know we have an open mind, that we do not have a closed mind.''

Justice Alito and every other sitting member of the Supreme Court told the Senate Judiciary Committee during their confirmation hearings that it would be (in the words of Justice Alito) ``improper'' and a ``disservice to the judicial process'' for a Supreme Court nominee to comment on issues that might come before the Court. Justice Thomas said that such comments would at minimum ``leave the impression that I prejudged this issue,'' which would be ``inappropriate for any judge who is worth his or her salt.'' Justice Kagan echoed those comments, telling the Committee it would be ``inappropriate'' for her to ``give any indication of how she would rule in a case''--even ``in a somewhat veiled manner.'' And Justice Kavanaugh explained that nominees ``cannot discuss cases or issues that might come before them.'' He continued: ``As Justice Ginsburg said, no hints, no forecasts, no previews.''

Justice Gorsuch made clear during his confirmation hearing that this rule applies to the precise topic on which Justice Alito opined to the Wall Street Journal:

Senator Blumenthal. Thank you. I also want to raise a question, talking about court procedure, relating to conflicts of interest and ethics. I think you were asked yesterday about the proposed ethics rules that have been applied to your court--

Judge Gorsuch. Yes.

Senator Blumenthal: [continuing]. To the appellate court, to the District Court, but not to the Supreme Court. Would you view such legislation as a violation of the separation of powers?

Judge Gorsuch. Senator, I am afraid I just have to respectfully decline to comment on that because I am afraid that could be a case or controversy, and you can see how it might be. I can understand Congress? concern and interest in this area. I understand that. But I think the proper way to test that question is the prescribed process of legislation and litigation.

You, Justice Sotomayor, and Justice Barrett each expressly cited the canons of judicial ethics as the source of a nominee's obligation to refuse to comment on such matters. There seems to be no question that Justice Alito is bound by, and that his opining violated, these principles. Improper Intrusion into a Specific Matter

These principles apply broadly to any opining, on any issue that might perhaps come before the Court. But here it was worse; it was not just general opining, it was opining in relation to a specific ongoing dispute. The quote at issue in the article--``No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court''-- directly follows a mention of my judicial ethics bill. Justice Alito's decision to opine publicly on the constitutionality of that bill may well embolden legal challenges to the bill should it become law. Indeed, his comments encourage challenges to all manner of judicial ethics laws already on the books.

Justice Alito's opining will also fuel obstruction of our Senate investigations into these matters. To inform its work on my bill and other judicial ethics legislation, and oversee the performance of the statutory Judicial Conference in this arena, the Senate Judiciary Committee is investigating multiple reports that Supreme Court justices have accepted and failed to disclose lavish gifts from billionaire benefactors. Separately, the Senate Finance Committee is investigating the federal tax considerations surrounding the billionaires? undisclosed gifts to Supreme Court justices. Both committees' inquiries have been stymied by individuals asserting that Congress has no constitutional authority to legislate in this area, hence no authority to investigate. Justice Alito's public comments prop up these theories.

As the author of the bill in question and as a participant in the related investigations, I feel acutely the targeting of this work by Justice Alito, and consider it more than just misguided or accidental general opining. It is directed to my work. Improper Intrusion into a specific matter at the behest of counsel in that matter

Compounding the issues above, Attorney David Rivkin was one of the interviewers in the Wall Street Journal piece, and also a lawyer in the above dispute. This dual role suggests that Justice Alito may have opined on this matter at the behest of Mr. Rivkin himself. Bad enough that a justice opines on some general matter that may come before the Court; worse when the opining brings his influence to bear in a specific ongoing legal dispute; worse still when the influence of a justice appears to have been summoned by counsel to a party in that dispute.

The timeline of the Wall Street Journal interview suggests that its release was coordinated with Mr. Rivkin's efforts to block our inquiry. Mr. Rivkin's interview with Justice Alito was reportedly conducted in ``early July'' 2023. On July 11, Senate Judiciary Committee Chair Durbin and I sent a letter to Mr. Rivkin's client inquiring about undisclosed gifts and travel provided to justices. On July 20, the Senate Judiciary Committee voted to advance my judicial ethics bill mentioned above. (Notably, the Rivkin/Alito Congress-has-no-authority argument fared poorly in the committee that day, with no Republican rising to rebut the arguments against it.) On July 25, Mr. Rivkin by letter refused to provide the requested information on the purported ground that ``any attempt by Congress to enact ethics standards for the Supreme Court would falter on constitutional objections.'' That response, appended hereto, was instantly published in Fox News Three days later, on July 28, the Wall Street Journal editorial page published the supportive opining from Justice Alito.

Improper Intrusion into a Specific Matter Involving an Undisclosed Personal Relationship

On top of all this, the dispute upon which Justice Alito opined involves an individual with whom Justice Alito has a longstanding personal and political relationship. As my colleagues and I pointed out in our August 3 letter, ``Mr. Rivkin is counsel for Leonard Leo with regard to [the Judiciary] Committee's investigation into Mr, Leo's actions to facilitate gifts of free transportation and lodging that Justice Alito accepted from Paul Singer and Robin Arkley II in 2008.'' Mr. Leo was Justice Alito's companion on the luxurious Alaskan fishing trip in 2008 and facilitated the gifts to the justice of free transportation and lodging. Two years earlier, Mr. Leo's political organization ``had run an advertising campaign supporting Alito in his confirmation fight, and Leo was reportedly part of the team that prepared Alito for his Senate hearings.

The timing of Justice Alito's opining suggests that he intervened to give his friend and political ally support in his effort to block congressional inquiries. It appears that Justice Alito (a) opined (b) on a specific ongoing dispute (c) at the behest of counsel in that dispute (d) to the benefit of a personal friend and ally. Each is objectionable, and appears to violate, inter alia, Canon 2(B) of the Code of Conduct for United States Judges, which provides, ``A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.'' Improper Use of Judicial Office for Personal Benefit

The final unpleasant fact in this affair is that Justice Alito's opining, apparently at the behest of his friend and ally's lawyer, props up an argument being used to block inquiry into undisclosed gifts and travel received by Justice Alito. At the end, Justice Alito is the beneficiary of his own improper opining. This implicates Canon 2(B) strictures against improperly using one's office to further a personal interest: a justice obstructing a congressional investigation that implicates his own conduct.

The Senate Judiciary Committee's investigation encompasses reports that Justice Alito accepted but did not disclose gifts of travel and lodging valued in the tens of thousands of dollars. Further investigation may reveal additional information that Justice Alito would prefer not come to light. The facts as already reported suggest that Justice Alito likely violated the financial disclosure requirements of the Ethics in Government Act. Perhaps Justice Alito should also have recused himself as required by the recusal statute in a 2014 case involving a company owned by Paul Singer, one of the billionaires who attended and paid for his Alaskan fishing vacation. Justice Alito's public suggestion that these laws are unconstitutional as applied to the Supreme Court, and that Congress lacks authority to amend them or investigate their implementation or enforcement, appears designed to impede Senate efforts to investigate these and other potential abuses. Conclusion

In the worst case facts may reveal, Justice Alito was involved in an organized campaign to block congressional action with regard to a matter in which he has a personal stake. Whether Justice Alito was unwittingly used to provide fodder for such interference, or intentionally participated, is a question whose answer requires additional facts. The heart of any due process is a fair determination of the facts. Uniquely in the whole of government, the Supreme Court has insulated its justices from any semblance of fair fact- finding. The obstructive campaign run by Mr. Rivkin and Mr. Leo, fueled by Justice Alito's opining, appears intended to prevent Congress from gathering precisely those facts.

As you have repeatedly emphasized, the Supreme Court should not be helpless when it comes to policing its own members' ethical obligations. But it is necessarily helpless if there is no process of fair fact-finding, nor independent decision- making. I request that you as Chief Justice, or through the Judicial Conference, take whatever steps are necessary to investigate this affair and provide the public with prompt and trustworthy answers. Sincerely, Sheldon Whitehouse,

Chairman, Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights. ____ Baker Hostetler, July 25, 2023. Re Response to July 11, 2023 Letter to Leonard Leo.

Dear Chairman Durbin and Senator Whitehouse: We write on behalf of Leonard Leo in response to your letter of July 11, 2023, which requested information concerning Mr. Leo's interactions with Supreme Court Justices. We understand this inquiry is part of an investigation certain members of the Senate Judiciary Committee have undertaken regarding ethics standards and the Supreme Court. While we respect the Committee's oversight role, after reviewing your July 11 Letter, the nature of this investigation, and the circumstances surrounding your interest in Mr. Leo, we believe that your inquiry exceeds the limits placed by the Constitution on the Committee's investigative authority.

Your investigation of Mr. Leo infringes two provisions of the Bill of Rights. By selectively targeting Mr. Leo for investigation on a politically charged basis, while ignoring other potential sources of information on the asserted topic of interest who are similarly situated to Mr. Leo but have different political views that are more consistent with those of the Committee majority, your inquiry appears to be political retaliation against a private citizen in violation of the First Amendment. For similar reasons, your inquiry cannot be reconciled with the Equal Protection component of the Due Process Clause of the Fifth Amendment. And regardless of its other constitutional infirmities, it appears that your investigation lacks a valid legislative purpose, because the legislation the Committee is considering would be unconstitutional if enacted. The Committee's Inquiry Raises Serious First Amendment Concerns

Bedrock constitutional principles dictate that ``no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.'' W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). In the guise of conducting an investigation concerning Supreme Court ethics, the Committee appears to be targeting Mr. Leo because of disagreement with his political activities and viewpoints on issues pertaining to our federal judiciary. An investigation so squarely at odds with the First Amendment cannot be maintained.

Mr. Leo is entitled by the First Amendment to engage in public advocacy, associate with others who share his views, and express opinions on important matters of public concern. ``[T]he freedom to think and speak is among our inalienable human rights.'' 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2311 (2023). Indeed, expressive activity of this kind is afforded the greatest protection possible. See Connick v. Myers, 461 U.S. 138, 145 (1983) (``[S]peech on public issues occupies the `highest rung of the hierarchy [sic] of First Amendment values,' and is entitled to special protection.'' (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)). Yet Mr. Leo has, for years, been the subject of vicious attacks by members of Congress, specifically including members of the Committee majority, because of how he chooses to exercise his rights. In reference to Mr. Leo's public advocacy work, for example, Senator Whitehouse has called Mr. Leo the ``little spider that you find at the center of the dark money web.'' Senator Sheldon Whitehouse, Remarks on the Floor of the United State Senate (Sept. 13, 2022). Similar remarks from Senator Whitehouse and others are too numerous to recount.

This campaign of innuendo and character assassination has now moved beyond angry speeches and disparaging soundbites. In the July 11 Letter, Committee Democrats have now wielded the investigative powers of Congress to harass Mr. Leo for exercising his First Amendment rights. That transforms what has to this point been a nuisance occasioned by intemperate rhetoric into a constitutional transgression.

``[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.'' Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (quotation omitted). Thus, an official is prohibited from ``tak[ing] adverse action against someone based on'' that person's expressive activity. Id. This bar against retaliatory action applies to Congress as much when it acts in its investigative capacity as when it legislates. See Barenblatt v. United States, 360 U.S. 109, 126 (1959) (``[T]he provisions of the First Amendment . . . of course reach and limit congressional investigations.'').

The Committee's investigation into Mr. Leo's relationship with Justice Alito quite clearly constitutes an adverse action for purposes of the First Amendment. The burden created by a congressional inquiry is significant. See Watkins v. U.S., 354 U.S. 178, 197 (1957) (``The mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or associations is a measure of governmental interference.''). It can chill expressive activity and infringe on First Amendment rights. See, e.g., Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir. 2001) (``Any form of official retaliation for exercising one's freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom.''); see also United States v. Hansen, 143 S. Ct. 1932, 1963 (2023) (Jackson, J., dissenting) (noting that an investigative letter sent by members of Congress ``can plainly chill speech, even though it is not a prosecution (and, for that matter, even if a formal investigation never materializes).'').

It seems clear that this targeted inquiry is motivated primarily, if not entirely, by a dislike for Mr. Leo's expressive activities. Retaliatory motive can be shown in at least two ways: (1) where the ``evidence of the motive and the [adverse action] [are] sufficient for a circumstantial demonstration that the one caused the other,'' Hartman v. Moore, 547 U.S. 250, 260 (2006); or (2) where ``otherwise similarly situated individuals not engaged in the same sort of protected speech'' were not subjected to the same adverse action, Nieves, 139 S. Ct. at 1727. Both circumstances are present here.

As noted, Mr. Leo and the groups with which he is affiliated have been subjected to a barrage of disparaging remarks because of their views on judicial nominations and other judicial matters. Sen. Whitehouse has attacked ``creepy right-wing billionaires who stay out of the limelight and let others, namely Leonard Leo and his crew, operate their'' supposed ``far-right scheme to capture and control our Supreme Court.'' Senator Sheldon Whitehouse, Remarks on the Floor of the United State Senate (July 12, 2023). Senator Durbin has similarly decried ``Leonard Leo and the Federalist Society'' for their ``joint effort [with] very conservative groups, special interest, dark money groups, and the Republican party'' to shape ``what will be the future of the court.'' Senator Richard Durbin, Interview with the Washington Post (July 13, 2023). And perhaps most tellingly, the present investigation was announced with a statement titled``Whitehouse, Durbin Ask Leonard Leo and Right-Wing Billionaires for Full Accounting of Gifts to Supreme Court Justices.'' Sens. Richard Durbin and Sheldon Whitehouse, Press Statement (July 12, 2023).

These explicitly political attacks, and others like them, made over the course of many years and reaching a crescendo in the days immediately following the transmission of the letter to Mr. Leo, provide an ample basis for concluding that the July 11 Letter is animated by animus toward ``conservative'' ``Right-Wing'' views and organizations, rather than a purely genuine concern about Supreme Court ethics. See Lyberger v. Snider, 42 F.4th 807, 813 (7th Cir. 2022) (explaining that statements from officials who took adverse action can demonstrate retaliatory motive). The circumstances of the Committee's investigation show that ``retaliatory animus actually caused'' the adverse action taken against Mr. Leo. Nieves, 139 S. Ct. at 1723.

This conclusion is confirmed by the targeted and one-sided nature of the investigation. Despite professing interest in potential ethics violations and influence-peddling at the Supreme Court, the Committee has focused its inquiries on individuals who have relationships with Justices appointed by Republican Presidents. Reported instances of Democrat- appointed Justices accepting personal hospitality or other items of value from private individuals have been ignored. Here are some examples:

In 2019, Justice Ruth Bader Ginsburg was given a $1 million award by the Berggruen Institute, an organization founded by billionaire investor Nicolas Berggruen. See Andrew Kerr, Ruth Bader Ginsburg's Mysterious $1 Million Prize, Washington Free Beacon (July 19, 2023). Justice Ginsburg used the money to make donations to various charitable causes of her choosing, most of which remain unknown. See id.

Between 2004 and 2016, Justice Stephen Breyer took at least 225 trips that were paid for by private individuals, including a 2013 trip to a private compound in Nantucket with billionaire David Rubenstein, who has a history of donating to liberal causes. See Marty Schladen, U.S. Supreme Court justices take lavish gifts--then raise the bar for bribery prosecutions, Ohio Capital Journal (April 26, 2023).

On September 30, 2022, the Library of Congress hosted an expensive investiture celebration for Justice Ketanji Brown Jackson that was funded by undisclosed donors. See Houston Keene, Library of Congress explains why it hosted Jackson investiture but not for Gorsuch, Kavanaugh, Barrett, Fox News (Sept. 30, 2022).

On two occasions, Justice Sonia Sotomayor failed to recuse herself from cases involving her publisher, Penguin Random House, which had paid her $3.6 million for the right to publish her books. See Victor Nava, Justice Sonia Sotomayor didn't recuse her self from cases involving publisher that paid her $3M: report, N.Y. Post (May 4, 2023).

Justice Sonia Sotomayor used taxpayer-funded Supreme Court personnel to promote sales of her books, from which she earned millions of dollars, including at least $400,000 in royalties. See Brian Slodysko & Eric Tucker, Supreme Court Justice Sotomayor's I staff prodded colleges and libraries to buy her books, Associated Press (July 11, 2023).

Throughout her tenure on the Supreme Court, Justice Ruth Bader Ginsburg maintained a close relationship with the pro- abortion group National Organization for Women (``NOW''), which frequently had business before the Court. See Richard A. Serrano & David G. Savage, Ginsburg Has Ties to Activist Group, Los Angeles Times (Mar. 11, 2004). Among other things, Justice Ginsburg helped the organization fundraise by donating an autographed copy of one of her decisions, and contributed to its lecture series, even as she participated in cases in which NOW filed amicus briefs. See id.; Katelynn Richardson, Here Are the Times Liberal Justices had Political Engagements that Were Largely Ignored by Democrats, Daily Caller (May 5, 2023).

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