Late last month, the Wall Street Journal published an op-ed by David B. Rivkin Jr. and James Taranto reporting on what they described as “two wide-ranging” interview sessions with Supreme Court Justice Samuel Alito. The essay is mostly a puff-piece. For example, it asserts that Justice Alito follows “a distinctive interpretive method that is rooted in originalism and textualism—adherence to the text, respectively, of the Constitution and statutes.” A more accurate assessment would be that Justice Alito almost invariably votes for ideologically conservative outcomes that align with the institutional interests of the Republican Party and frequently, though not invariably, purports to justify those outcomes by tendentious readings of the text and history of the Constitution and statutes.
For example, last year Justice Alito’s opinion overruling the constitutional right to abortion and Justice Clarence Thomas’s opinion finding a constitutional right to carry firearms in public (which Justice Alito joined) cited history extensively as a justification for the results. Yet the opinions Justice Alito joined this year concluding that the First Amendment overrides anti-discrimination law and that the Fourteenth Amendment forbids race-based affirmative action in higher education barely acknowledged the very limited scope of free speech prior to the mid-twentieth century or the extensive record of race-specific measures adopted by the same Reconstruction Congress that proposed the Fourteenth Amendment.
With respect to statutory interpretation, Justice Elena Kagan has called out the disingenuous textualism to which Justice Alito and his fellow conservatives ostensibly subscribe. Dissenting last year from an opinion frustrating the Environmental Protection Agency’s ability to combat climate change, she had this to say about an opinion and a concurrence that Justice Alito joined:
The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence.
Yet while the Rivkin/Taranto op-ed (which is behind a paywall) was notable for its sycophantic coverage of Justice Alito’s record, it made news mostly because of comments Justice Alito offered regarding the prospect of proposed legislation from Congress that would either impose a code of ethics on the Justices or require the Court to adopt one for itself. Recent reporting on previously undisclosed lavish “hospitality” and other goodies received by Justices Thomas and Alito from extremely wealthy conservative patrons has spurred interest among the public and their representatives in Congress to require all of the Justices to adhere to a code of ethics in the same way that lower federal court judges must. Justice Alito pushed back. The Rivkin/Taranto essay quotes him as follows:
“Congress did not create the Supreme Court”—the Constitution did. “I know this is a controversial view, but I’m willing to say it,” [Justice Alito] says. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
Justice Alito’s view is not merely controversial. It is wrong.
The Awesome Congressional Powers to Constitute the Court and Strip Jurisdiction
Let’s begin with Justice Alito’s claim that “Congress did not create the Supreme Court.” Article III, Section III states that the “judicial power of the United States, shall be vested in one Supreme Court” and lower federal courts that “Congress may from time to time ordain and establish.” In that sense, the Constitution calls for the creation of a Supreme Court, but it is up to Congress to decide on key details, including such matters as its budget for security, air conditioning, and law clerks, as well as such fundamental issues as how many Justices there will be on the Court.
Up until 1869, Congress frequently exercised its power to expand (and in one instance shrink) the size of the Supreme Court. Recently and in response to Senate Republicans’ denying President Barack Obama the opportunity to fill the vacancy created by Justice Antonin Scalia’s death followed by their hypocritical rush to confirm President Donald Trump’s nominee to the vacancy created by Justice Ruth Bader Ginsburg’s death, many of the Court’s critics have called for Congress to expand the Court. Although there are practical and political obstacles to such expansion, there is no constitutional obstacle.
What about Justice Alito’s assertion that the Constitution does not authorize Congress to “regulate the Supreme Court?” That’s even more obviously incorrect. At the very least, Congress has the express constitutional power to regulate the jurisdiction of the Supreme Court, as conferred by Article III, Section 2, which sets a default rule governing the cases the Court can hear, “with such exceptions, and under such regulations as the Congress shall make.”
Congress has sometimes exercised its power under the so-called Exceptions Clause quite aggressively—and the Supreme Court has typically acquiesced. For example, in 1868, Congress passed a law stripping the Supreme Court of its jurisdiction to hear an already-pending appeal in a habeas corpus case brought by a Mississippi critic of Reconstruction. In Ex Parte McCardle, the Court, which was sympathetic to the petitioner, nonetheless dismissed the case on the ground that Congress had validly exercised its Exceptions Clause power.
McCardle was and remains controversial, as it seemingly permits Congress to use its power under the Exceptions Clause to steer the substantive outcomes of Supreme Court cases. Yet controversial does not mean overruled. Thus, in a 2018 opinion that Justice Alito joined in full, the Court favorably cited McCardle as support for upholding an Act of Congress that obligated federal courts to dismiss lawsuits concerning a 147-acre parcel of land in Michigan.
Given Congress’s very substantial power to alter the size and jurisdiction of the Supreme Court—which can have a decisive impact on what cases the Court hears and how it decides them—it would be anomalous if Congress had no power to prescribe rules governing lesser matters, such as ethics regulations.
Existing Ethics Regulations
Indeed, Congress has already prescribed some ethics rules for the Supreme Court. Consider an April letter from Chief Justice John Roberts declining the invitation of the Senate Judiciary Committee to testify at a hearing regarding ethical standards for the Justices. It includes as an attachment a statement of all nine Justices reaffirming their commitment to various ethical principles and an appendix listing multiple federal statutes applicable to the Justices, along with assurances that the Justices comply with those statutes. Among these are: a provision of the Ethics in Government Act requiring financial disclosures; a provision of the Federal Gift Statute forbidding the solicitation or receipt of gifts from persons having business before them; limits on foreign gifts; and more.
To be sure, the letter from the Chief Justice, the nine-Justice statement, and the appendix come with some caveats. For example, they note that recusal standards applicable to lower courts might not apply in the same way to the Supreme Court because a judge who is recused from a lower court can be replaced with a substitute, whereas a Justice’s recusal leaves the Court shorthanded. And in some places the Chief Justice and the other Justices suggest that they may be complying with applicable federal law voluntarily rather than because they are fully bound.
Yet that suggestion cannot be taken seriously, at least not if offered to support Justice Alito’s claim that Congress has no power to prescribe rules of conduct for the Court. Does Congress lack the power to forbid Justices from taking bribes? From committing extortion? Thirty years ago, the Supreme Court held itself without jurisdiction to review the impeachment of a federal district judge who had refused to resign his position even after being convicted of lying to a grand jury that had been investigating a bribery charge. Do the Justices believe that the underlying federal criminal laws that were applied to Judge Walter Nixon in that case cannot be validly applied to them?
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There are prudential and principled reasons for Congress to exercise caution before using its powers to regulate the Supreme Court, especially where enactments could undercut judicial independence and thus the rule of law. However, contrary to Justice Alito’s bold assertion, Congress does have those powers, and they are substantial.
Meanwhile, current proposals—like those that would subject the Justices to the same substantive and procedural limits as other judges (except possibly with respect to recusals)—would strengthen rather than weaken the Court’s authority and legitimacy by addressing the appearance (and perhaps even the reality) of impropriety. Justice Alito and his colleagues would do well to recognize a constitutionally valid and sensible effort in Congress to save the Court from itself.