Congress Needs to Show Samuel Alito and the Supreme Court Who’s Boss

Justice Samuel Alito is making plain his view that the U.S. Supreme Court is not just the highest court in the land but the highest branch of government.

In a recent interview with The Wall Street Journal, Alito asserted that Congress lacks the authority to impose an ethics code on the Supreme Court, saying, “No provision in the Constitution gives the authority to regulate the Supreme Court—period.”

Ironically, the very circumstances of Alito’s interview demonstrate the high court’s rudderless system of self-guided ethics navigation. The interview was conducted by attorney David Rivkin, Jr., and Wall Street Journal editor James Taranto. Rivkin represents conservative billionaire donor Leonard Leo, who is the subject of congressional inquiries into his involvement with Supreme Court justices. Rivkin also represents a party with a current case pending before SCOTUS.

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Following the interview, Sen. Sheldon Whitehouse (D-RI) filed an ethics complaint against Alito for violating numerous judicial ethics canons, including the prohibition against commenting on a matter that may come before the court. Whitehouse’s complaint explained that proposed legislation for a Supreme Court ethics code is likely to become a matter that comes before the high court and, therefore, Alito should not have been expressing his views on the matter.

It is this very principle that Supreme Court justices nominees have consistently invoked when pressed in confirmation hearings on such issues as whether Roe v. Wade should be overturned and whether SCOTUS should be subject to a code of ethics.

The complaint also pointed out the fact that attorney Rivkin represents Leo in fighting efforts by the Senate Judiciary Committee and Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights to seek information about Leo’s involvement with trips and other perks provided to SCOTUS—such as the luxury fishing trip that Alito went on with Leo that was funded by another billionaire right-wing donor. Rivkin also represents another client with a case pending before SCOTUS and calls for Alito to recuse himself from that case were rejected by Alito in a recent decision.

In his decision rejecting recusal, Alito claimed that numerous SCOTUS cases involve lawyers or parties who may have expressed favor or disfavor toward SCOTUS and that, therefore, his recusal was unwarranted.

Whether or not Alito might prevail in an inquiry into his decision not to recuse—or an inquiry into whether Alito violated ethics standards by accepting lavish vacations—is beside the point because no real process exists to do either, and if Alito has any say in the matter no such process will ever exist.

The fact that Alito feels empowered to express his opinion on pending legislation that would likely be litigated before SCOTUS reveals the growing dangers posed by today’s high court.

Alito’s assertion that Congress cannot regulate the SCOTUS is hardly rooted in law or logic.

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As pointed out by conservative scholar Norman Ornstein—senior fellow emeritus at the American Enterprise Institute—Alito’s view is plainly contradicted by such facts as Congress having the power to remove justices and increase or shrink the numbers of justices.

Ornstein added, “Over the past 30 years [Congress] has subjected all federal judges, including Supreme Court justices, to financial disclosure, created stringent limitations on gifts, including defining what constitutes a gift, and set limits on outside income” and “[w]hile Alito has not complied fully with these requirements, he has filed his disclosure reports, making clear that at least implicitly, he accepts Congress’s authority to regulate behavior on the Supreme Court.”

Alito’s claim is also contradicted by plain words in the Constitution—Article 3, Section 2—that give Congress the ability to affect the Supreme Court “with such Exceptions, and under such Regulations as the Congress shall make.”

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Indeed, the Constitution suggests quite the opposite of Alito’s self-aggrandizing viewpoint. Rather, it reflects that if there is a hierarchy of power within the three branches of government it is the Supreme Court that sits at the bottom of that hierarchy with an ability only to decide cases in contrast to Congress’s ability to make laws and regulations as well as control over all funding for the entire federal government.

But legal scholars and commentators have noted that increasingly over the past century, the Supreme Court has steadily taken over as the most powerful branch of government resulting in “judicial supremacy” and “the rise of the cult of the court.”

The roots of that steady assertion of power by SCOTUS arose after the Civil War “when the Court overruled Congress’s judgment that the Constitution demanded civil-rights and voting laws. The Court has spent 150 years since sapping our national representatives of the right to issue national rules,” Harvard Law professors Nikolas Bowie and Daphna Renan wrote in The Atlantic.

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Justice Alito’s arrogance—as reflected through his assertions—embodies the current high-water mark of the current state of SCOTUS’ growing unchecked power. In essence, Alito is playing a game of chicken with our democracy as he dares Congress to try and pass legislation to rein him in through ethics regulation. Alito—and the rest of SCOTUS—can also feel confident that the executive branch (via the Justice Department) is too chicken to open any kind of investigation of potential illegalities in the justices’ financial disclosures, for fear of political backlash.

But this kind of arrogance must not be allowed to go unchecked. Sen. Whitehouse’s ethics complaint not only tests whether Chief Justice John Roberts possesses the will—or ability—to police his own house, but is also a crucial step towards finally beginning reclamation of our democracy from nine unelected judges.

It is high time that Congress and the executive branch stop treating the Supreme Court as the supreme branch of government.

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