Actually, Justice Alito, Congress CAN regulate the Supreme Court

Over the weekend, in a lengthy interview with The Wall Street Journal's opinion page, Supreme Court Justice Samuel Alito offered insights into some of the ways he and his conservative colleagues differ in their approach to judging and the law.

For example, he said, Chief Justice John Roberts "puts a high premium on consensus," which is why "he rarely dissents." Justice Clarence Thomas gives less weight than other justices to stare decisis — the principle that once an issue has been settled in court, it remains settled — and often files solo opinions that disregard precedents he considers mistaken.

Alito observed that while both he and Justice Neil Gorsuch are textualists — i.e., they focus on the plain meaning of a statute's words — Gorsuch is much more likely to interpret a text in a way its author could not have intended. A quintessential example was the 2020 case of Bostock v. Clayton County. Gorsuch, writing for the majority, held that Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating because of "sex," extends to "sexual orientation and gender identity." Alito dissented, arguing that in 1964, when homosexuality was broadly disfavored, Congress plainly wasn't intending to make sexual orientation a protected category.

It was an interesting interview and well worth reading. But when the conversation turned to efforts by some members of Congress to impose specific ethical disclosure rules on Supreme Court justices and their clerks, Alito vigorously and emphatically voiced a claim that — to put it politely — makes no sense.

"I know this is a controversial view, but I'm willing to say it," he told the Journal. "No provision in the Constitution gives them the authority to regulate the Supreme Court — period."

It was a bizarre thing to say. Article III, Section 2 of the Constitution explicitly empowers Congress to regulate what the justices do. It does so most obviously by giving Congress considerable authority to strip the court of appellate jurisdiction. After listing a handful of areas in which the Supreme Court has "original jurisdiction" — litigation that must begin in the Supreme Court rather than a lower court — the Constitution leaves everything else up to Congress. When it comes to the 99 percent of cases that begin in a lower court, decrees the Constitution, "the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." (Italics added)

Thus if Congress wanted to, it could pass a law tomorrow barring the Supreme Court from hearing cases involving, say, environmental protection or wage-and-hour laws or disputes arising in Puerto Rico. It could block the Supreme Court from agreeing to settle legislative redistricting challenges. It could exclude the court from hearing arguments in tax matters.

Of course Congress isn't likely to do any of those things, but it has that power. By the same token, Congress could — it won't, but it could — pass the Supreme Court Ethics, Recusal and Transparency Act being pushed by Senator Sheldon Whitehouse of Rhode Island, and include a provision excluding it from Supreme Court review.

Jurisdiction-stripping isn't the only means Congress has of regulating the high court.

Under Section 1 of Article III, the salaries of federal judges "shall not be diminished during their Continuance in Office." Thus, while Congress cannot lower the pay of current judges, it can reduce the compensation (or other benefits) of justices to be appointed in the future. And of course the Supreme Court's budget, like all other federal appropriations, is subject to congressional approval.

Moreover, it is Congress that specifies the text of judicial oaths, that decides how many seats the Supreme Court has, and that authorizes the court to hire law clerks. Congress cannot regulate the inner workings of the court or lean on the justices to rule one way or another. But it could presumably require a supermajority of justices to strike down a federal statute or regulation as unconstitutional.

All that is in addition to the fact that no one can serve on the Supreme Court (or any federal bench) without the consent of the Senate. And while it has never happened, Congress can remove a justice through impeachment by the House and conviction in the Senate.

Alito knows all this. So why would he tell the Journal that Congress has no authority "to regulate the Supreme Court — period"? The likeliest explanation is that he got so caught up in contending that Congress should not presume to impose an ethics code on the high court that he veered into hyperbole. That happens sometimes, especially in unscripted conversations or interviews.

But if Alito and his colleagues really don't want Congress deciding what perks, gifts, and indulgences they may accept, they ought to voluntarily impose a strict code on themselves. The gratuities, lavish vacations, and luxury accommodations that the justices — liberals as well as conservatives — have gotten so used to accepting from wealthy admirers and deep-pocketed institutions are undermining the court's reputation. Rather than argue about Congress's authority to hold members of the Supreme Court to a higher ethical standard, how about if the justices raise that standard on their own? Alito and his colleagues are nine of the most powerful people in America. Their integrity should be beyond reproach.

Right now, it's anything but.

Jeff Jacoby is a columnist for The Boston Globe, from which this is reprinted with permission."