Answering Democrat critics who want to legislatively impose a code of conduct on the Supreme Court, Justice Samuel Alito said Congress has no constitutional authority to regulate the court.
“Congress did not create the Supreme Court” - the Constitution did, Justice Alito told The Wall Street Journal in an interview published July 28.
“I know this is a controversial view, but I’m willing to say it,” he said.
“No provision in the Constitution gives them the authority to regulate the Supreme Court - period.”
He was referring to Article III, section 1 of the Constitution, which states:
“The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
His Republican supporters say this means Congress has a relatively free hand to regulate lower courts—including creating and abolishing them—but can do very little to the Supreme Court.
Justice Alito said he was not sure if his colleagues on the nation’s highest court agree with this view.
“I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about.”
Justice Alito’s comments came after the Democrat-controlled Senate Judiciary Committee narrowly approved a Democrat-backed Supreme Court ethics reform bill on July 20 on a party-line vote.
Republicans oppose the legislation, the proposed Supreme Court Ethics, Recusal, and Transparency Act (SCERT) of 2023 (S.359), which they say is unconstitutional. They have suggested that Democrats—many of whom want to pack the Supreme Court with liberal justices—only want to move against the judicial body because its six-member conservative-leaning majority has been handing down decisions they find objectionable.
The proposed SCERT Act, sponsored by Sen. Sheldon Whitehouse (D-R.I.), chairman of one of the Senate Judiciary Committee’s panels, would direct the Supreme Court to issue a code of conduct governing its own members and require justices to recuse themselves from certain cases. It would also mandate the public disclosure of gifts, paid travel, and income information.
It would allow members of the public to file complaints against justices and appoint a panel of five lower court judges to investigate the complaints. Litigants would be allowed to file a motion to disqualify a justice from a case—a process Republicans say is ripe for abuse.
The measure would impose new rules governing the filing of friend-of-the-court briefs, which seek to influence the court on specific cases and require greater disclosure by the parties filing them.
Most of the left’s ire has been directed at conservative Justice Clarence Thomas. They are upset that wealthy Republican donor Harlan Crow gave Justice Thomas luxurious vacations, tuition support for a grandnephew he raised, and purchased low-dollar real estate from the justice’s family.
Justice Thomas didn’t disclose the events, saying he was advised that it wasn’t required, but has vowed to disclose such events going forward.
But critics have also attacked Justice Alito, who has defended his decisions not to disclose a paid Alaska trip in 2008 and not to recuse himself from a court case in 2014 that was related to the person who paid for the transportation.
The justice said he did not mention the trip in a 2008 report because not disclosing it was the “standard practice” in cases like this.
Justice Alito and the eight other members of the court voluntarily follow disclosure rules that apply to lower court judges and officials in the executive branch.
Democrats like Mr. Whitehouse believe that the very fact that Justices Alito and Thomas have received gifts from wealthy benefactors is corruption in and of itself.
The Supreme Court is “the only court in the country, perhaps the only court in the world, with no ethics process at all,” Mr. Whitehouse said at the committee hearing on July 20.
“Then came the news that six politically active right wing-billionaires have been paying household expenses, engaging in financial transactions, and providing massive secret gifts of travel and hospitality for at least two justices.”
“We are here because the highest court in the land has the lowest standard of ethics anywhere in the federal government. And justices have exhibited much improper behavior, not least in hapless efforts to excuse the misdeeds,” Mr. Whitehouse said.
It is unclear when the full Senate will take up the proposed SCERT Act. If it passes the Democrat-controlled Senate, it seems unlikely to pass the Republican-controlled House of Representatives.
Justice Alito also said in the interview, “I marvel at all the nonsense that has been written about me in the last year.”
Facing political attacks, “the traditional idea about how judges and justices should behave is they should be mute” and allow others, especially “the organized bar,” to come to their defense.
“But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”
In the interview, Justice Alito also addressed the possibility that governments could begin defying Supreme Court rulings, as some did after the 1954 Brown v. Board of Education ruling that desegregated public schools.
Public approval for the court is currently at a low ebb in the nation's polarized political environment and some states and elected officials have been doing their best to do an end-run around the court’s decisions. Some claim the court itself is illegitimate.
President Joe Biden frequently criticizes the court. After it struck down his student loan forgiveness program in June, instead of accepting the decision, he promptly began working on new ways to grant debt relief.
After the court struck down New York state’s tough concealed carry gun permitting system a year ago, recognizing for the first time a constitutional right to carry firearms in public for self-defense, New York and other Democrat-led states passed new gun restrictions, some of which have been enjoined by the courts.
After the court’s decision a year ago reversing the 1973 abortion precedent, Roe v. Wade, President Biden began pressing Congress to codify the now-overturned decision. And he’s made abortion one of the centerpieces of his 2024 reelection campaign.
“If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular,” Justice Alito said.
“So you can have a revival of the massive resistance that occurred in the South after Brown,” he added.
