Justice Alito Challenges Congressional Authority Over Supreme Court Ethics

Justice Samuel Alito has openly contended that Congress lacks the authority to impose ethical rules on Supreme Court justices.

These remarks come amid a widening debate on the ethical conduct of the Supreme Court. This judicial body has been under scrutiny following the Senate Judiciary Committee's vote to advance the Supreme Court Ethics, Recusal and Transparency Act. Read the full report in the National Review.

Justice Alito's comments were made public following a discussion with David B. Rivkin Jr., an appellate lawyer, and James Taranto of the Wall Street Journal. He argues that the establishment of the Supreme Court was not an act of Congress. As such, he believes that Congress does not possess the constitutional authority to regulate the workings of the Supreme Court.

The Basis of Justice Alito's Stance

 “Congress did not create the Supreme Court,” explained Alito to David B. Rivkin Jr., an appellate lawyer, and James Taranto of the Wall Street Journal. “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

In essence, Justice Alito's stance opposes the Supreme Court Ethics, Recusal and Transparency Act. This Act, championed by the Democrats, proposes a code of conduct for justices, regulations around gift disclosure, and expansion of recusal circumstances. The contention stems from differing interpretations of the constitution and the powers it bestows on Congress.

The proposed legislation has sparked a heated debate, dividing the Senate Judiciary Committee along party lines. Republicans accuse Democrats of trying to delegitimize the Supreme Court, claiming the push for "transparency" is merely a veiled attempt at dismantling a conservative court.

Opposition to the Transparency Act

During a May hearing, Lindsey Graham, the ranking member, expressed Republican sentiments. Graham insinuated that the proposed bill is a political move rather than a genuine attempt to enhance ethical practices within the Supreme Court.

“This is about destroying a conservative court,” argued ranking member Lindsey Graham during a hearing that took place in May.

It remains unclear whether other justices share Justice Alito's viewpoint. He has refrained from speaking for his colleagues on the matter. However, he has hinted that the concept of the Court's independence is a topic of contemplation among the justices.

Statements and Silence Among Justices

Despite the silence of his colleagues, some actions may hint at their views. Notably, Chief Justice John Roberts declined an invitation from Senate Judiciary chairman Dick Durbin to attend a Supreme Court ethics hearing. Yet, Roberts attached a statement on ethics that all nine justices had voluntarily recommitted themselves to.

Controversy over the Supreme Court's ethics intensified with recent reports alleging improper conduct by conservative justices. These allegations largely involve concerns over disclosure and recusals.

ProPublica has been particularly vocal, delving into the personal and financial relationships of some justices and raising questions of propriety.

ProPublica's Allegations and Justice Alito's Response

For example, ProPublica examined the ties between Justice Clarence Thomas and real-estate developer Harlan Crow. Both parties have denied any wrongdoing. The outlet also suggested impropriety on Justice Alito's part during a trip to Alaska with hedge-fund manager Paul Singer, who later had a case before the Court. This incident was not reported by Justice Alito.

 “I marvel at all the nonsense that has been written about me in the last year,” Alito told Rivkin and Taranto.

In response to these allegations, Justice Alito defended himself by publishing an op-ed. He expressed his dissatisfaction with the portrayal of his actions and the lack of defense from traditional bodies such as the "organized bar". He reiterated that he was unaware of his connection to Singer at the time of their trip and that recusal in Singer's case would not have been required or appropriate.

Alito's Foreseeable Future for the Supreme Court

Beyond defending his actions, Justice Alito also raised concerns about the potential future of the Supreme Court. He anticipates that increasing criticisms could lead to open defiance of the Court's decisions. Drawing parallels with the massive resistance in the South following the Supreme Court's 1954 ruling in Brown v. Board of Education, he sees a similar path ahead if the Court continues to be perceived as illegitimate.

He also points out the nuanced differences in how conservative justices approach cases.

Justice Alito himself prefers an approach that emphasizes historical context, believing that history can offer valuable insights into the interpretation of the Constitution. He noted the differing methods among his colleagues, ranging from Thomas's minimal emphasis on stare decisis to Chief Justice Roberts's high premium on consensus.

Considerations on Interpretive Methods

Justice Alito pointed out that these differences in interpretive method are less evident among the liberal justices. However, he emphasized that how the justices align on various cases can often be unusual. These differences in perspective and interpretation underscore the complexity and diversity within the Supreme Court.

In summary:

- Justice Alito asserts that Congress lacks the authority to regulate the Supreme Court, opposing the Supreme Court Ethics, Recusal and Transparency Act.
- His comments follow the Senate Judiciary Committee's vote to advance the Act, sparking a partisan divide.
- Some other justices have hinted at a shared viewpoint through actions, but have refrained from speaking publicly on the matter.
- The ethical conduct of the Supreme Court has come under scrutiny, with ProPublica leading several investigations into alleged improper conduct.
- Justice Alito anticipates potential defiance of the Court's decisions in the future, drawing parallels with resistance following the 1954 ruling in Brown v. Board of Education.
- He highlights the varied approaches of conservative justices to case interpretation, emphasizing the diversity within the Supreme Court.