Dems Call For Conservative Justice Recusals On Cases That Could Undermine Their Political Goals

Dems Call For Conservative Justice Recusals On Cases That Could Undermine Their Political Goals

Katelynn Richardson on September 28, 2023

• Fifty House Democrats wrote a letter to Justice Clarence Thomas Wednesday calling on him to recuse from Loper Bright Enterprises v. Raimondo, an upcoming case with major implications for the authority of executive agencies, after ProPublica published a story about his presence at a 2018 Koch network event.
• Last month, Senate Judiciary Chair Dick Durbin likewise called for Justice Samuel Alito to recuse from the term’s major tax case, Moore v. United States, after a lawyer on the case interviewed him for the Wall Street Journal.
• “The Left is inventing new recusal standards, not grounded in any law or in precedent, to bully these originalist Justices to recuse so the Left can have their preferred lineup of Justices decide these big cases,” Mark Paoletta, a Schaerr Jaffe law firm partner and close friend of Thomas, told the Daily Caller News Foundation.

Democrats are increasingly calling for conservative justices to recuse themselves from major cases with the potential to hurt their political goals.

Fifty House Democrats called on Justice Clarence Thomas Wednesday to recuse from an upcoming case that could rein in the authority of executive agencies, Loper Bright Enterprises v. Raimondo, after ProPublica published a story detailing his presence at a 2018 event put on by the Koch network, or Stand Together, founded by libertarian billionaire Charles Koch. Senate Judiciary Chair Dick Durbin likewise called for Justice Samuel Alito to recuse from a major tax case that could undermine the legal foundation for a wealth tax, Moore v. United States, after a lawyer on the case interviewed Alito for the Wall Street Journal in August.

“These calls by the Left for Justices Thomas and Alito to recuse are laughable,” Mark Paoletta, a Schaerr Jaffe law firm partner and close friend of Thomas, told the Daily Caller News Foundation. “The Left is inventing new recusal standards, not grounded in any law or in precedent, to bully these originalist Justices to recuse so the Left can have their preferred lineup of Justices decide these big cases.”

In the Loper Bright case, the Supreme Court will consider whether to overturn the 1984 decision that gave rise to overturn Chevron deference, a legal doctrine that courts should defer to agency interpretations of statutes when the language is ambiguous.

Democrats wrote in their letter that the conservative Koch network has “openly sought to overturn Chevron” for decades, noting the plaintiffs are represented by Koch network staff attorneys.

“But there is no question that your lengthy relationship with the Kochs, including your participation in donor retreats for the Koch network, requires recusal in the upcoming case that the Koch network has teed up in an attempt to overturn Chevron,” they wrote.

The day before ProPublica’s story, Democratic Rhode Island Sen. Sheldon Whitehouse, along with Democratic Sens. Mazie Hirono of Hawaii, Diane Feinstein of California and Elizabeth Warren of Massachusetts filed an amicus brief warning that a number of organizations which filed briefs urging the court to overturn Chevron have received Koch family funding and fossil fuel corporation funding.

The senators wrote that Chevron deference has allowed Congress to “rely on agency capacity and subject matter expertise to help carry out Congress’s broad policy objectives.” Democrats have frequently backed executive agency policies that the Supreme Court eventually struck down as executive overreach, including President Joe Biden’s student loan forgiveness plan, the Occupational Safety and Health Administration COVID-19 vaccine mandate and the Obama Environmental Protection Agency’s proposed carbon emission caps on power plants.

Senate Judiciary Chair Dick Durbin also called on Justice Thomas to recuse from the Loper Bright case over the weekend.

“Senators Whitehouse and Durbin are determined to undermine the Supreme Court because they don’t like its current composition,” JCN President Carrie Severino told the Daily Caller News Foundation. “With the help of ProPublica—a propaganda outlet bankrolled by left-wing billionaires—the Democratic senators are using so-called ‘ethics’ to strategically push for recusals from Justices Alito and Thomas where they are not required.  This effort to intimidate the Court goes back years now, to when Senator Whitehouse threatened to ‘restructure’ the Court if it did not ‘heal itself.’”

ProPublica’s major donors also bankroll many of the same groups that called for Thomas to resign or to be investigated in response to the outlet’s reporting, a DCNF review of tax documents revealed.

Alito declined Durbin’s call for him to recuse from the Moore case in a Sept. 8 statement, writing that there is “no valid reason” for him to recuse and that the senator’s argument “fundamentally misunderstands the circumstances under which Supreme Court Justices must work.” David Rivkin, who is representing the plaintiffs, interviewed Alito with WSJ editor James Taranto in a story published July 28.

The Moore case centers on a question at the heart of Democrats’ “wealth tax” proposals: whether taxes on unrealized gains are legal under the 16th Amendment, which gives Congress the power to tax incomes “without apportionment among the several States.” While the facts of the case deal with a “mandatory repatriation tax” imposed by Congress’ passage of the 2017 Tax Cuts and Jobs Act, the Supreme Court’s decision on this question would have implications for other proposals floated by Democrats in the future.

In February, President Joe Biden called for a “billionaire minimum tax” during the State of the Union. He previously proposed the tax in his 2023 budget, though it didn’t gain traction, according to CNBC.

The proposal would apply a 20% tax to all income — including unrealized gains — to households with net worth over $100 million.

Last year, Durbin called on Thomas to recuse from any Jan. 6 related cases over text messages his wife sent to former White House Chief of Staff Mark Meadows.

“The Left was perfectly fine with Justice Ginsburg raising money for the pro-abortion advocacy group NOW by donating an autographed copy of her VMI opinion for a NOW auction, and her doing all sorts of other events to support progressive advocacy groups who routinely appeared before the Court – and she never recused,” Paoletta continued. “This latest tactic to achieve leftwing outcomes at the court by intimidating originalist justices into unnecessarily recusing themselves from cases is transparent, lame, and won’t work.”