Kagan Publicly Addresses Congressional Oversight of Court Hours after Senate Dems Demand Alito’s Recusal for Doing the Same

Senate Judiciary Committee Democrats sent a letter to Supreme Court Chief Justice John Roberts on Thursday demanding that he force Justice Samuel Alito to recuse himself from any future cases involving efforts to regulate the high Court, citing Alito’s public defense of the Court’s independence from Congressional oversight as disqualifying. Shortly after the letter was sent, Justice Elena Kagan publicly weighed in on the debate in the other direction, defending the right of Congress to check the Supreme Court.

Alito told the Wall Street Journal earlier this week that Congress lacks the authority to regulate the Court.

“Congress did not create the Supreme Court,” 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.”

Alito’s comments come as Democrats on the committee advanced the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act to the full Senate last month. The bill would “require Supreme Court Justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a Justice has a connection to a party or amicus before the Court, and require Justices to explain their recusal decisions to the public.”

The legislation was first introduced in May 2022 after the leak of the Supreme Court’s draft majority opinion in the Dobbs v. Jackson Women’s Health case, but advanced last month after a series of hit pieces accused the conservative justices of ethical impropriety.

In the letter to Roberts, committee chairman Dick Durbin and other Democrats suggest that, “By opining on the constitutionality of legislation under consideration by the U.S. Senate and agreeing to sit for interviews conducted in part by an attorney with a case currently pending before the Court, Justice Alito violated a key tenet of the Statement on Ethics Principles and Practices… to which all Supreme Court Justices purport to subscribe as well as the Code of Conduct for U.S. Judges.”

“Justice Alito has already twice violated this admittedly limited Statement on Ethics by ‘creat[ing] an appearance of impropriety in the minds of reasonable members of the public,’” the lawmakers added.

The Democrats took issue with Alito participating in an interview that was conducted in part by David A. Rivkin, who is representing plaintiffs in a tax case, Moore v. United States, that will be heard before the Supreme Court next term.

“Mr. Rivkin’s access to Justice Alito and efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties,” Durbin said.

The lawmakers argue the current “episode again illustrates why legislation establishing stronger, enforceable ethics standards for the Court is of paramount importance.”

“The Court is mired in an ethical crisis of its own making, yet its only response has been a weak statement on ethics that Justice Alito has apparently ignored,” the letter concludes. “It is unacceptable for the highest court in the land to have the lowest ethical standards, and because the Court has abdicated its responsibility to establish its own standards, Congress must act.”

Hours after the letter was sent, Kagan jumped into the debate during her remarks at a judicial conference in Portland.

“It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial,” Kagan told the conference in remarks first reported by Politico. “Can Congress do various things to regulate the Supreme Court? I think the answer is: yes.”

“Of course, Congress can regulate various aspects of what the Supreme Court does,” she added. “Congress funds the Supreme Court. Congress historically has made changes to the court’s structure and composition. Congress has made changes to the court’s appellate jurisdiction.”

In what may have been a jab at Alito, Kagan said she wouldn’t explore the issue further in public to avoid the perception of bias if a case dealing with the issue of Congressional oversight of the Judiciary ever came before her.

The mainstream media has published several reports of alleged ethical impropriety among the conservative justices in recent months. CNN reported in June that Alito was “in the hot seat over trips to Alaska and Rome he accepted from groups and individuals who lobby the Supreme Court.”

The CNN story centers on Justice Alito’s 2008 trip to Alaska with Paul Singer, as reported by ProPublica — the lead purveyor of the ginned-up Court controversies —  and Alito’s visit to Rome last year to deliver a keynote address at a gala. The trip to Rome was paid for by Notre Dame’s Religious Liberty Initiative. CNN notes the group’s legal clinic has filed a “series of ‘friend-of-the-court’ briefs in religious liberty cases before the Supreme Court since its founding in 2020.”

“My understanding is that Notre Dame Law School’s Religious Liberty Initiative has a number of components, only one of which is a clinic that, like the legal clinics at many other law schools, files amicus briefs in the Supreme Court,” Alito said. “I was not invited to speak in Rome by the clinic.”

Meanwhile, Common Dreams reported: “‘Shady and Corrupt’: Add Barrett Real Estate Deal to List of Supreme Court Ethics Scandals.”

The stories attempted to stir up a controversy involving Justice Amy Coney Barrett and the Notre Dame initiative, noting that she sold her private residence to a recently hired professor who was taking on a leadership role at the initiative.

Yet readers who make it 19 paragraphs into the CNN report will find that “Neither Barrett’s real estate deal nor Alito’s appearance in Italy appear to violate any of the court’s ethics rules, according to several experts interviewed by CNN.”