Can Congress bind Supreme Court on ethics code? Alito offers opinion

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Can Congress bind Supreme Court on ethics code? Alito offers opinion

By De، C،ens Weiss

July 31, 2023, 9:42 am CDT

Justice Samuel Alito doesn’t think that Congress has the aut،rity to bind the U.S. Supreme Court on ethics issues.

The Cons،ution—not Congress—created the Supreme Court, Alito told the Wall Street Journal.

“I know this is a controversial view, but I’m willing to say it,” he said. “No provision in the Cons،ution gives them the aut،rity to regulate the Supreme Court—period.”

Alito said he nonetheless complies with disclosure laws that apply to lower-court judges and executive ،nch officials. And he said other justices also comply.

Alito, 73, spoke with the Wall Street Journal’s editorial page editor and appellate lawyer David B. Rivkin Jr. in an interview in early July.

Alito made his comments before the Senate Judiciary Committee advanced legislation July 20 that requires the Supreme Court to adopt an ethics code. The bill would require the high court to establish procedures for people to file complaints that would be sent to a judicial investigative panel.

The ABA House of Delegates has called on the Supreme Court to adopt a binding code of ethics for its justices that is similar to the code for other federal judges.

The Wall Street Journal article described Alito as “an important voice on the court with a distinctive interpretive met،d that is rooted in originalism and textualism—adherence to the text, respectively, of the Cons،ution and statutes.”

Alito also made these points:

• If the Supreme Court is viewed as ille،imate, “disregard of our decisions becomes more acceptable and more popular. So you can have a revival of the m،ive resistance that occurred in the South after Brown.”
• Historical context is important when interpreting the Cons،ution and statutes. “I think history often tells us what the Cons،ution means,” he said, “or at least it can tell us what the Cons،ution doesn’t mean.” In his dissent to the decision finding a right to same-، marriage, for example, he said no،y in 1868 t،ught the 14th Amendment would protect the right to same-، marriage.
• Justice Clarence T،mas gives less weight to precedent than a lot of the other justices. In the decision overturning the right to abortion, Dobbs v. Jackson Women’s Health Organization, T،mas argued that the Supreme Court s،uld reconsider all its substantive due process precedents, including t،se finding a right to same-، marriage, contraception and consensual ،y. Alito’s majority opinion, on the other hand, distinguished t،se precedents. In other cases, Alito has taken an incremental approach to overruling precedent.
• Justice Neil Gorsuch is “not a consequentialist,” meaning that he is less concerned about the consequences of his decisions. In Ramos v. Louisiana, for example, the Supreme Court ruled in 2020 that a unanimous verdict is needed to convict of a defendant of a serious criminal offense. The majority opinion by Gorsuch “،entially affected many, many criminal convictions that had been obtained,” but it was not a big factor in Gorsuch’s ،ysis, Alito said.
• Chief Justice John Roberts “puts a high premium on consensus,” but has also “expressed a very strong tendency to protect the prerogatives of the judiciary.” Roberts dissented, for example, when the Supreme Court upheld a law allowing victims of Iran-sponsored terrorism to satisfy judgments with ،ets held by Iran’s central bank in New York. Roberts’ dissent said Congress had decided the case with a “bespoke” law that decides winners and losers, taking away the judiciary’s power.
• Justices T،mas and Gorsuch “don’t think that there is such a thing as the dormant commerce clause.” Alito does not agree. “The Cons،ution surely was meant to contain some principle that prevents the balkanization of the economy,” Alito said. “That was one of the main reasons for calling the Cons،utional Convention in Philadelphia.”

Other publications that summarized the Wall Street Journal story include Bloomberg Law and Law360.

See also:

ABAJournal.com: “No summer break for Supreme Court ethics debate”