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 on 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 that 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 isn’t sure whether 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,” he said.
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—want to move against the judicial body only because its six-member conservative-leaning majority has been handing down decisions they find objectionable.
The proposal, 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 also would 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 motions to disqualify justices from cases—a process that 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 would require greater disclosure by the parties filing them.
Most of the left’s ire has been directed at conservative Justice Clarence Thomas. They have complained that wealthy Republican donor Harlan Crow paid for vacations for Justice Thomas, provided 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, although he’s vowed to disclose such events going 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.
The justice said he didn’t mention the trip in a 2008 report because not disclosing it was the “standard practice.”
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 such as Mr. Whitehouse have stated their belief that Justice Alito’s and Justice Thomas’s merely receiving gifts from wealthy benefactors is corruption.
“[The Supreme Court] 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.”
It’s unclear when the full Senate will take up the proposed SCERT Act. If approved by the Democrat-controlled Senate, it seems unlikely to pass the Republican-controlled House of Representatives.
Justice Alito also told the Wall Street Journal, “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, he said.
“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 ebbing in the nation’s polarized political environment, and some states and elected officials have been doing their best to end-run the court’s decisions. Some claim even that the court is illegitimate.
President Joe Biden frequently criticizes the court. After it struck down his student loan forgiveness program in June, he promptly began working on new ways to grant debt relief.
After the court struck down New York state’s tough concealed carry 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 the states have been enjoined from enforcing by the courts.
After the court’s decision a year ago that reversed Roe v. Wade, the 1973 case in which the Supreme Court held that the Constitution protects abortion, President Biden began pressing Congress to codify the 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.”
