In a wide-ranging interview published Friday, Justice Samuel Alito asserted that Congress lacks the authority 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’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. Both have denied wrongdoing. ProPublica also suggested that Alito behaved improperly when he took a trip to Alaska with hedge-fund manager Paul Singer, who later had a case before the Court. The trip was not reported by the justice.
During his interview published Friday, Alito defended his decision to publish an op-ed about the ProPublica story before the outlet published it.
“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 simply leave it to others like “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.”
In his op-ed, Alito said he was not aware of the connection to Singer and even if had been, “recusal in that case would not have been required or appropriate.” He added that the portrayal of the trip was “misleading” and that until recently, the rules held that “personal hospitality need not be reported.”
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 argued that the Biden administration should ignore the judiciary in an abortion-pill case. President Joe Biden has remarked that “this is not a normal Court” and protests outside the Court building and the homes of the justices have increased in recent years. Security for the justices has been upped as a result.
“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.
Alito said he favors an approach that emphasizes historical context. “I think history often tells us what the Constitution means, or at least it can tell us what the Constitution doesn’t mean,” he explained.
Analyzing his colleagues, the justice 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.