Congress Can Regulate Supreme Court, Justice Says

Associate U.S. Supreme Court Justice Elena Kagan poses for the official photo at the Supreme Court in Washington, on Oct. 7, 2022. Olivier Douliery/AFP via Getty Images

Congress has the power to impose regulations on the U.S. Supreme Court, a justice said on Aug. 3.

“It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial,” Justice Elena Kagan told a judicial conference in Oregon.

“Can Congress do various things to regulate the Supreme Court? I think the answer is: yes,” Justice Kagan, an appointee of former President Barack Obama, added.

Justice Samuel Alito recently said that Congress has no authority to regulate the nation’s top court.

“I know this is a controversial view, but I’m willing to say it,” Justice Alito, an appointee of former President George W. Bush, said. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”

Justice Alito was referring 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.”

Justice Alito said he was not sure whether his colleagues on the nation’s highest court agree with this view. “But I think it is something we have all thought about,” he said.

Some Democrats responded to Justice Alito’s comments by disagreeing with him.

“Dear Justice Alito: You’re on the Supreme Court in part because Congress expanded the Court to 9 Justices,” Rep. Ted Lieu wrote on X, formerly known as Twitter. “Congress can impeach Justices and can in many cases strip the Court of jurisdiction. Congress has always regulated you and will continue to do so. You are not above the law.”

At the judicial conference, Politico reported, Justice Kagan said, “Of course, Congress can regulate various aspects of what the Supreme Court does.”

“Congress funds the Supreme Court. Congress historically has made changes to the court’s structure and composition. Congress has made changes to the court’s appellate jurisdiction,“ she said, adding: ”Can Congress do anything it wants? Well, no. There are limits here, no doubts.”

The court has been in internal discussion on adopting an updated ethics code, according to Justice Kagan.

Approved Reform Bill

The Senate Judiciary Committee in July approved a bill that would require the Supreme Court to implement an ethics code.

The Supreme Court Ethics, Recusal, and Transparency Act (SCERT) of 2023 would force the court to lay out a code of conduct for justices in addition to requiring the disclosure of gifts, travel, and income by both justices and law clerks.

The bill, from Sen. Sheldon Whitehouse (D-R.I.), would also require parties with business at the court to disclose gifts, income, and reimbursement provided to justices, and widen the circumstances under which justices and other judges would be disqualified from certain cases.

Justices currently follow the Judicial Conference of the United States’ code of conduct, according to the Supreme Court.

U.S. Supreme Court is seen at sunrise in Washington on July 31, 2023. Madalina Vasiliu/The Epoch Times

Chief Justice John Roberts, an appointee of Mr. Bush, wrote in 2011 that justices have followed a directive from Congress to file financial disclosures but that the court “has never addressed whether Congress may impose those requirements on the Supreme Court.” He added later, “As in the case of financial reporting and gift requirements, the limits of Congress’s power to require recusal have never been tested.”

Mr. Whitehouse said before the approval that the court “has been captured by special interests, much like a railroad commission in the 1890s might have been captured by railroad barons to decide things their way.”

Republicans opposed the legislation.

Sen. Chuck Grassley (R-Iowa) said the bill is “about harassing and intimidating the Supreme Court.”

Democrats hold the Senate 51–49 but Republicans control the U.S. House of Representatives, making passage of the bill unlikely.

Concerns About Disclosures

Democrats and some groups have expressed concern about justices allegedly failing to follow current rules.

The concerns were raised after reports of Justice Clarence Thomas, an appointee of Mr. Bush, receiving paid vacations and other benefits from Harlan Crow, a wealthy Republican.

Justice Thomas said he was told that reporting the gifts was not required but that he would disclose similar benefits moving forward.

Critics also have 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.

Justice Sonia Sotomayor, an appointee of Mr. Obama, has also drawn scrutiny after records showed staff members repeatedly encouraged public institutions to buy her books.

The court in a statement said that “judicial ethics guidance suggests that a judge may sign copies of his or her work, which may also be available for sale, but there should be no requirement or suggestion that attendees are required to purchase books in order to attend.”

Matthew Vadum contributed to this report.