A phone call between President-elect Donald Trump and Supreme Court Justice Samuel Alito has sparked ethical concerns, as some experts and Democratic lawmakers question the propriety of the interaction.
The call, which took place on Tuesday, reportedly centered on Alito’s former law clerk, William Levi, who is being considered for a position in the incoming administration.
Alito confirmed in a statement that he had taken the call from Trump, who had asked about Levi’s qualifications for a government job.
The justice emphasized that the discussion did not touch on any cases before the court, including Trump’s legal battles.
At the time of the call, Alito said he was unaware that Trump would later request an emergency stay from the Supreme Court to delay his sentencing in a criminal case involving a hush money payment.
However, legal experts and some Democratic lawmakers have raised concerns that the conversation violated judicial ethics and could undermine public confidence in the Court’s impartiality, especially given that Trump—the defendant in chief—has multiple ongoing legal matters before the Supreme Court.
These include a case involving the potential ban of the TikTok app and the request to delay his criminal sentencing in New York.
Justice Alito’s actions come amid growing scrutiny of the ethical conduct of the Supreme Court. Under the Court’s own ethics guidelines, justices are expected to avoid both the appearance of impropriety and actual conflicts of interest. In particular, communications between a sitting justice and any party involved in an active case are generally discouraged to maintain the Court’s independence and avoid any perception of bias.
“Contemporaneous out-of-court communications between a party to a legal proceeding and a judge or justice presiding over that proceeding are generally prohibited,” said Jeremy Fogel, former federal judge and executive director of the Berkeley Judicial Institute. He added that even if the subjects of such communications seem unrelated, the appearance of impropriety can be problematic.
Stephen Gillers, a professor of law at New York University and expert in judicial ethics, also expressed concern.
He pointed out that Alito’s decision to take a call from Trump—especially while Trump has legal matters pending before the Court—could create a perception that the justice’s impartiality might reasonably be questioned.
“Alito’s willingness to agree to such a call gives a whole new meaning to the term ‘tone deaf,’” Gillers wrote in an email. “This conduct undermines public perception of the Court’s independence.”
The timing of the phone call has intensified concerns. Just hours after the conversation, Trump’s legal team filed an emergency request with the Supreme Court asking for a delay in his sentencing for a 34-count felony conviction in connection with the 2016 hush money payment to adult film actress Stormy Daniels.
Trump’s attorneys argued that proceeding with the sentencing would disrupt the presidential transition and jeopardize national security.
Trump has also asked the Court to intervene in another high-profile case involving the social media platform TikTok, asking the justices to delay a ban on the app that could affect national security concerns.
The combination of these ongoing cases and Alito’s conversation with the president-elect has led some to question whether the Court’s ethical standards have been compromised.
Given the nature of the phone call, some legal experts and Democratic lawmakers are now calling for Justice Alito to recuse himself from any decisions related to Trump’s legal matters, including the case over his sentencing. Representative Jamie Raskin (D-MD), a constitutional law expert, argued that Alito’s conversation with Trump created an appearance of partiality.
“The mere act of having a personal telephone conversation with the president-elect, while he has active interests in matters currently pending before the Court, is plainly sufficient to trigger a situation ‘in which the Justice’s impartiality might reasonably be questioned,’” Raskin said in a statement, quoting judicial law.
This is not the first time Justice Alito has faced calls to recuse himself from politically sensitive cases. Earlier this year, some Democrats and judicial ethics experts called for his recusal from cases related to the January 6th Capitol attack, citing the controversial display of flags at Alito’s private residences.
In response to the concerns raised over the call, Justice Alito has defended his actions, asserting that there was nothing improper about the conversation. He noted that it is not unusual for justices to offer references for former law clerks seeking new positions, and that such calls are typically professional in nature. Alito also emphasized that he and Trump did not discuss any pending or future cases before the Supreme Court.
“We did not discuss the emergency application he filed today, and indeed, I was not even aware at the time of our conversation that such an application would be filed,” Alito said in his statement. “We also did not discuss any other matter that is pending or might in the future come before the Supreme Court or any past Supreme Court decisions involving the President-elect.”
Supporters of Alito’s actions, including George Mason University law professor Robert Luther, have argued that there is nothing ethically wrong with a justice providing a reference for a former law clerk. Luther dismissed the idea that the conversation was anything more than a routine employment matter.
“Imputing any other motive beyond that here is simply partisan wishcasting,” Luther said in an email.
Despite Alito’s defense, the unusual nature of the conversation has raised questions about the Court’s ethical standards, particularly as Trump has multiple legal matters pending before it. Some legal experts argue that the appearance of impropriety could undermine public trust in the Court, while others believe the conversation was innocent and consistent with typical judicial practices.
As the Supreme Court prepares to consider Trump’s request to delay his sentencing, the issue of judicial ethics—and the role of justices in politically charged cases—remains a topic of intense debate.