Justice Alito says Congress has no constitutional authority to impose regulations on Supreme Court

 July 30, 2023

Amid a series of partisan media hit pieces alleging questionable ethical behavior largely aimed at Republican-appointed justices, congressional Democrats are on a crusade to legislatively impose strict ethical and financial disclosure and transparency requirements on the Supreme Court.

In a rare move, Justice Samuel Alito spoke out in opposition to that concerted effort and declared that Congress had no constitutional authority to impose its will on the head of the separate but equal judicial branch of the government, the Associated Press reported.

Alito's remarks follow close on the heels of a Democrat-controlled Senate committee pushing through along partisan lines a bill that would mandate Supreme Court justices to strictly adhere to similar disclosure requirements as members of Congress and top executive branch officials are bound by.

Personal attacks and institutional defiance

In an interview with The Wall Street Journal conducted in early July that was just published on Friday, Justice Alito spoke about a range of different issues involving the Supreme Court and its members.

With regard to the series of media articles alleging ethical violations by conservative-leaning jurists, himself included, Alito said, "I marvel at all the nonsense that has been written about me in the last year."

He noted that "the traditional idea about how judges and justices should behave is they should be mute" and allow others to defend them, such as "the organized bar," but in this particular instance, he said, "(T)hat’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."

That was in reference to a preemptive op-ed he published with the Journal in June ahead of a smear piece by the left-leaning "independent" outlet ProPublica that accused him of various questionable ethical behaviors.

Justice Alito also addressed the increasingly open declarations of defiance and hostility toward the Supreme Court from Democrats, including President Joe Biden, that are clearly intended to undermine the American public's perception of the high court as a legitimate institution of constitutional authority.

"If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular. So you can have a revival of the massive resistance that occurred in the South after Brown," Alito said in reference to Democrat-led Southern states' initial efforts to defy and ignore the Supreme Court's 1954 Brown v. Board of Education ruling that ended racial segregation in public schools.

Congress has no constitutional authority over the Supreme Court

As for the Senate Judiciary Committee's recent passage of legislation championed by Sen. Sheldon Whitehouse (D-RI), which would impose on the Supreme Court disclosure requirements that are at least as tough as those Congress has imposed on itself -- which has little hope of passage in the Republican-controlled House -- Justice Alito questioned whether Congress even had any authority to do such a thing.

"Congress did not create the Supreme Court," but rather the Constitution itself did, Alito said. "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."

Asked whether any of the other justices agreed with that position, the jurist acknowledged, "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."

Sen. Whitehouse fires back

Politico reported that Sen. Whitehouse, in response to Justice Alito's comments, pointed to his own remarks during a committee hearing last week, when he said, "The court’s financial disclosure requirements are a law, passed by Congress; its recusal requirements are a law, passed by Congress; and the body that implements financial disclosure and code of conduct issues is the Judicial Conference, a body created by Congress."

"Please let’s not pretend Congress can’t make amendments to laws Congress has passed or oversee agencies Congress has created," the Democratic Rhode Island senator added. "For decades the justices themselves have never objected to, and have actually, repeatedly and without complaint, complied with this structure, so even the court has demonstrated it doesn’t believe that canard."

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