In a Wall Street Journal interview, Supreme Court Justice Samuel Alito made a startling assertion of constitutional power: “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.” Alito was responding to legislation the Senate Judiciary Committee recently approved, a bill requiring the court adopt a code of ethics since the justices refuse to do it voluntarily. Democrats, along with constitutional scholars and lawyers, have been quick to set the record straight.
“It is just wrong on the facts to say that Congress doesn’t have anything to do with the rules guiding the Supreme Court,” Sen. Chris Murphy, a Connecticut Democrat, said on CNN’s State of the Union. “In fact, from the very beginning, Congress has set those rules,” he added. “No Congressional authority over the Supreme Court—is among the most audacious, absurd, and arrogant of recent Alito misstatements,” tweeted Sen. Richard Blumenthal, a Judiciary Committee member. “His head-smacking claim is stunning in saying the Court is answerable to no one.”
“Let me get this straight,” tweeted Rep. Ritchie Torres, a New York Democrat. “Congress has the authority to set the Supreme Court’s budget and to infinitely expand the high court. But, according to Justice Alito, Congress cannot require SCOTUS to have a code of ethics like the rest of the federal government. Does that sound remotely logical?” His colleague Rep. Alexandria Ocasio-Cortez summed up Alito’s attitude: “Alito’s next opinion piece in the WSJ is about to be ‘I am a little king, actually. The Constitution doesn’t explicitly say I’m not.’”
That’s pretty much Alito’s claim, and it is exactly wrong. Stunningly wrong for a supposed strict originalist who supposedly adheres to the exact words of the Constitution (and 17th-century English common law) in his judicial reasoning. In fact, here’s the Constitution:
"Article III Section 2 : In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
University of Virginia Law Professor Amanda Frost explains it succinctly in her testimony to the Judiciary Committee. (Video via @VladaKnowlton on Twitter.)
Checks and balances is equally as important [as separation of powers], and the role of the Congress is to establish the Supreme Court. It’s not just permitted, it’s required. The Supreme Court of the United States is constitutionally mandated under Article III, but there is no detail about how it is to operate because that was left to the Congress of the United States under Article 1, Section 8—the necessary and proper clause. And immediately, Congress agreed to do that in the Judiciary Act of 1789…. The Congress sets the size of the Supreme Court; that is not in the hands of Chief Justice Roberts and his colleagues. Congress establishes the quorum requirement; that is not in the hands of Chief Justice Roberts and his colleagues.
When this Congress passes a law that says that they must recuse themselves, the judges and justices of our federal judiciary, when there are certain conflicts of interest. The justices are not free to say “that law doesn’t apply to me, I’m going to sit on that case anyway.” So what is troubling is there is an implication [by this court] … that it doesn’t think these laws bind it. I find that very confusing in light of the … long history of congressional administration of the courts.
Speaking of recusal, the person interviewing Alito for that Wall Street Journal piece is David B. Rivkin Jr., a Federalist Society regular pundit. Rivkin just happens to be a lead attorney on a major tax case that will be in front of the Supreme Court next term. That warranted a parenthetical disclosure in paragraph 26 of the article.
Rivkin is also acting as Leonard Leo’s representative to Congress. Leo is the billionaire friend and fixer to Alito and Justice Clarence Thomas, a dark money operative who brings them together with the billionaires who provide them a jet-setting lifestyle. Leo is the architect of this conservative Supreme Court who is using the vast fortune he’s amassed to undo decades of civil rights and social progress.
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The Judiciary Committee had the audacity to write to Leo for information after ProPublica reported on a luxury fishing trip he arranged for Alito in 2008. Alito’s flight, entertainment, fishing, meals, wine, and room were covered by hedge fund manager Paul Singer, with Leo arranging and accompanying them on the trip.
Rivkin took care of Leo’s response to the committee in a scathing letter claiming—you guessed it—the committee has no authority to investigate the court or to request that information, to investigate, or to legislate the justices’ behavior because that would violate the separation of powers principle.
To sum up, the lawyer who will be arguing before Alito to overthrow a century’s worth of precedent and say that Congress does not have the power to levy taxes on very wealthy people is also giving Alito a soft-ball interview in which he says Congress does not have the power to regulate his behavior. Which involves undeclared luxury trips from the very rich people Rivkin says Congress can’t tax.
That sounds like a very big ethical—and constitutional—problem.
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