In a wide-ranging interview published Friday, Justice Samuel Alito asserted that Congress lacks the power to impose an ethics code on the justices.
“Congress did not create the Supreme Court,” explained Alito to David B. Rivkin Jr., an appellate lawyer, and James Taranto of the Wall Street Journal.
“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,” Alito said.
Alito’s comments were published after the Senate Judiciary Committee voted on party lines to advance the Supreme Court Ethics, Recusal and Transparency Act, with all Democrats in favor and all Republicans opposed. Among other things, the bill would impose a code of conduct on the justices, adopt rules governing disclosure of gifts, and expand the circumstances under which justices recuse themselves.
Republicans have argued that the “transparency” push is not an honest one, but rather an effort to delegitimize the Court. “This is about destroying a conservative court,” argued ranking member Lindsey Graham (R., S.C.) during a hearing in May.
The associate justice did not share whether the other justices agree with his view of the Court’s independence. “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,” Alito said.
However, when Chief Justice John Roberts declined an invitation from Senate Judiciary chairman Dick Durbin (D., Ill.) to appear at a Supreme Court ethics hearing, Roberts attached a statement on ethics that all nine justices voluntarily recommitted themselves to.
The ethics push has coincided with a series of reports about the conservative justices suggesting they have behaved improperly with respect to disclosure and recusals. The most notable reports have come from ProPublica. The outlet delved into the personal and financial relationship between Justice Clarence Thomas and real-estate developer Harlan Crow. It also suggested that Alito behaved improperly when he took a trip to Alaska with hedge-fund manager Paul Singer.
During his interview published Friday, Alito defended his decision to release a statement before ProPublica published its story.
“I marvel at all the nonsense that has been written about me in the last year,” Alito told Rivkin and Taranto. “The traditional idea about how judges and justices should behave is they should be mute” and leave it to others, especially ‘the organized bar,’ to defend them.”
“But that’s just not happening,” said Alito. “And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”
The justice also wondered whether open defiance of the Court may occur in the near future for the first time since the Supreme Court’s 1954 ruling in Brown v. Board of Education.
Some members of Congress have suggested that the Biden administration ignore the judiciary in an abortion-pill case. Biden also announced his intention to pursue debt relief for students by other means, also viewed as legally dubious, after the Supreme Court struck down his previous program. The president has remarked that “this is not a normal Court.”
“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.
The justice also said that the conservative justices are very different in how they approach cases and do not all come to the same conclusions.
He said he favors an approach that emphasizes historical context. Alito said Thomas “gives less weight to stare decisis than a lot of other justices,” Justice Neil Gorsuch is “not a consequentialist,” and the chief justice “puts a high premium on consensus.”
Alito does not see the same differences in interpretive method among the liberal justices, but he re-emphasized that the way the justices line up on various cases is often unusual.