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Limits of congressional power to regulate Supreme Court untested

Comments from Justice Samuel A. Alito Jr. stirred debate about how much authority lawmakers could wield over court operations

Justice Samuel A. Alito Jr. sits during a group photo of the Supreme Court in Washington in 2021.
Justice Samuel A. Alito Jr. sits during a group photo of the Supreme Court in Washington in 2021. (Erin Schaff/The New York Times)

Supreme Court Justice Samuel A. Alito Jr. started a flurry of conversation among judicial and congressional experts when he expressed a self-proclaimed “controversial view” that Congress doesn’t have “the authority to regulate the Supreme Court — period.”

Those experts generally agree that such a broad comment on its face isn’t correct, since Congress does have authority to regulate the Supreme Court’s docket, budget and even how many justices there are.

But the specifics get trickier when it comes to whether Congress has the authority to pass a code of ethics for the Supreme Court, which congressional Democrats have pushed for this year.

Democrats have rebuked Alito since the justice gave a rare public comment to The Wall Street Journal. Sen. Christopher S. Murphy of Connecticut, one of the Democrats, pointed out in a CNN interview Sunday that Congress sets the number of seats on the Supreme Court and even made the seat Alito sits in.

“It’s just stunningly wrong,” Murphy said of Alito’s comments last week. “And he should know that more than anyone else because his seat on the Supreme Court exists only because of an act passed by Congress.”

Senate Judiciary Chairman Richard J. Durbin, D-Ill., defended Congress’ authority to legislate on the “serious matter” in a statement Wednesday, and noted the committee voted last month to advance a bill that would mandate the justices adopt a binding ethical code.

“Justice Alito is not the 101st member of the United States Senate. His intervention in Article I activity is unwise and unwelcome,” Durbin said. “I’ve said from the beginning of this inquiry: if the Court does not act on ethics reform, Congress will.”

The bill championed by Durbin and other Democrats has little chance of passing Congress in the face of opposition from Republicans, who along with Alito argue that it would violate the Constitution.

Experts said there’s room for speculation on whether Congress’ power extends that far and that the ultimate say may be up to Alito and the rest of the justices to answer.

George Mason University law professor Ilya Somin wrote in Reason that Congress already has extensive powers over the Supreme Court, including the ability to restrict what cases it can decide. Somin wrote that “the literal version of Alito’s statement makes little sense.”

“Congress can pretty obviously regulate the Supreme Court in a variety of ways. It can also probably impose at least some types of ethical restrictions on justices, at least if we concede that it has the power to ban bribery, which few dispute,” Somin wrote. “But congressional power over the Court is far from unlimited. And some ethics rules could potentially go beyond the scope of congressional authority.”

Somin also pointed out that the Constitution has explicit limits on Congress’ ability to regulate the court, such as preventing the reduction of justices’ pay or change the cases it is allowed to hear under the Constitution.

Charles Geyh, a law professor at Indiana University who focuses on judicial conduct and ethics, said there are “unknowns” about whether the specifics of any bill could pass constitutional muster. Although an ethics code could be constitutional in concept, Geyh said questions of enforcement could get tricky.

Geyh also said it was “bad form” for Alito to comment at all. Geyh said justices normally do not comment on issues that could come before them — and a challenge to a law on Supreme Court ethics certainly could.

Stephen Gillers, a law professor at New York University law school, said questions about the extent Congress can regulate the court are largely unanswered, and Alito himself will have a say in whether he is right or not.

Gillers said for the justices to answer that question for a Supreme Court code of ethics, it would likely require one of their own to refuse to comply with the law and force their fellow justices to decide the issue.

“So the court has a final word on something like this, and in the unlikely event that the question arises, the court will decide whether Alito is right or wrong,” Gillers said.

Gillers said the only way to certainly have a code of ethics that binds the Supreme Court is for the justices to agree to one themselves.

“The best resolution which seems to be remote at best is for the court itself to adopt a code of conduct for the justices and leave Congress out of it and a lot of people will be very happy if they can say that. The justices are also governed by an ethics code. That seems not to be possible,” Gillers said.

Congress already has passed a law that requires justices to do a financial disclosure every year. Gillers pointed out that although justices have complied with that law for decades, it has never actually been tested in court.

Alito, in the Wall Street Journal interview, brought up the Supreme Court’s independence when discussing the fact that he “voluntarily” complies with those disclosure laws.

At a Senate Judiciary Committee hearing earlier this year on Supreme Court ethics, Michael Mukasey, former attorney general in the George W. Bush administration, argued they would not be considered constitutional if they were challenged.

Mukasey acknowledged that Congress has some powers over how the Supreme Court works, but “prescribing the way in which the court administers its business internally is something else.”

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