Dem
51
GOP
49
Last week, the Senate Judiciary Committee passed a bill ordering the Supreme Court to adopt a code of ethics. The bill doesn't contain the code, it just orders the Court to write one itself. On Friday, Justice Samuel Alito published an op-ed in the Wall Street Journal announcing that Congress has no authority to do any such thing. He claims the separation of powers prevents Congress from telling the Supreme Court what it can and cannot do. End of story. Forget it, Congress, you lose.
Alito, as you may remember, is on the hot seat. He accepted luxury travel from folks who care greatly about what the Court decides and he didn't report any of that on his disclosure form. We're surprised he even bothered to fill out the form at all just because Congress says he has to. He probably filed it in part because he was aware that failure to do so is a violation of federal law, for which he could be indicted and put on trial should the AG so decide (very unlikely though).
Democrats didn't take the op-ed well. Rep. Alexandria Ocasio-Cortez (D-NY) said: "What a surprise, guy who is supposed to enforce checks and balances thinks checks shouldn't apply to him." Sen. Sheldon Whitehouse (D-RI) noted that the financial disclosure form that Alito didn't think was worth filling out completely is due to a law passed by Congress requiring him and the other justices to do so. Compliance with that law is overseen by the Judicial Conference, a body created by Congress by law.
Yesterday, Sen. Chris Murphy (D-CT) took exception to Alito's op-ed. He said of the justices: "They just see themselves as a second legislative body that has just as much power and right to impose their political will on the country, as Congress does."
Others have made the same point. Ilya Somin, a professor of law at the Antonin Scalia Law School at George Mason University, recently wrote: "Congress clearly does have power to regulate the Court in a variety of ways. Congress has power to set the size of the court, establish its pay, determine its staff and budget, and, with some exceptions, set out the scope of its jurisdiction to decide cases. Congress literally wrote the oath that justices take. The start of the Supreme Court term on the first Monday in October? It's a law Congress passed."
But there is more. Since 1948, Congress has required federal judges, including Supreme Court justices, to recuse themselves from cases in which their impartiality might reasonably be questioned. One might think that accepting expensive travel from people with cases before the Court might at least be questioned, but Alito thinks otherwise. Someone should ask him if he thinks Congress has the power to ban justices from taking out-and-out bribes.
Interest in the Supreme Court's ethics has been stimulated by some recent developments, of which Alito's fishing trip with people with business before the Court is only one. Clarence Thomas's buddy-buddy relationship with major Republican donor Harlan Crow is another. Oh, and then there is the matter of Jane Roberts, wife of Chief Justice John Roberts, who earned $10 million from 2007 to 2014 as a recruiter for big law firms. She would go to big law firms and ask them if they wanted her services. They all feared the consequences of saying no, so they hired her to recruit for them, even though all of them know very well which are the top law schools and could just send a recruiter to their campuses every spring. Even Elena Kagan has come under fire, although her transgression was far smaller than the others. She once gave a speech at the Aspen Institute (presumably paid) where members pay $10,000/year to hear important people give speeches. But that is small potatoes compared to what some of the other justices (and their wives) have done. (V)