United States Supreme Court Chief Justice John Roberts (L) and Associate Justice Samuel Alito (R) pose for an official portrait at the East Conference Room of the Supreme Court building on October 7, 2022, in Washington, D.C. The Supreme Court has begun a new term after Associate Justice Ketanji Brown Jackson was officially added to the bench in September.
Donald Trump may think he should be a king, but someone else seems to think he already is.
In an interview with The Wall Street Journal, Supreme Court Justice Samuel Alito said, “No provision in the Constitution gives them the authority to regulate the Supreme Court.”
The balls on this guy. Either this is the height of arrogance or a level of ignorance one would be shocked to find in a judge on the high court. I bet he said it with a straight face, too. And you wonder why people are now questioning the Supreme Cort’s legitimacy.
Bad enough, they’ve made it look like anyone with enough money can buy — or just as badly, give the impression they can buy — a favorable decision, an unimaginable ethical lapse. But for people so finely attuned to the nuance of law, yet so lacking in self-awareness to understand the optics of their behavior, cries out for a response severe enough to consider their removal from the bench.
I’d like to credit the writers who interviewed Alito. I’d like to think they couldn’t believe what they were hearing and were tempted to tell Alito as much, but 26 paragraphs into this otherwise fluff piece, we learn that one interviewer has a case before Alito and the Supreme Court next term, Moore v. United States, a tax case.
Alito, along with that other ethical paragon, Clarence Thomas, has made it look like court decisions are up for sale, and anyone with enough money can get any decision they want or get any decision they want overturned.
Of course, those two will deny it. They all will, and most of them have. But this is a problem of their own making. They’ve created this mess with behavior that raises enormous questions about impropriety and credibility ― and a refusal to address it. Nay, insisting it needn’t even be addressed. No one outside your courthouse did that, guys. You did. You’re not only not above the law, you’re also not above the power of optics.
In 2005, when Alito was nominated for the Supreme Court, editors of the Harvard Crimson wrote:
“Alito is the wrong man for the job because he is a conservative ideologue. We fear that, given the chance, he would overturn basic legal protections and reshape the scope of the U.S. government.”
One of those protections: a woman’s reproductive rights. It was Alito who wrote the decision in Dobbs. He probably couldn’t wait to do it, perhaps almost as a cathartic exercise after years of anger and frustration, maybe even bitterness, over conservative justices joining the liberal wing in decisions he — and Thomas, too — bristled at. There was Casey in 1992, when five Republican-appointed justices upheld a woman’s right to an abortion. In Obergefell, the court established a constitutional right to same-sex marriage. It preserved the Affordable Care Act. Then, with an even stronger conservative majority, the justices ruled that an employer cannot discriminate against an individual based on sexual orientation.
These are not just decisions. These are decisions in high-profile cases, the kind that a snowflakey egoist yearns to be associated with, hoping to cement a legacy. It’s why scholars regularly cite John Marshall and Earl Warren as among the most lauded, most impactful justices in the history of the Supreme Court. They adjudicated over cases that defined the court and shaped the direction of a nation in its expansion of rights and freedoms.
That ain’t Alito, although his often caustic hubris displays have assured his legacy of a dubious jurist who will never rise to the level of some of the court’s greatest justices. You’re an also-ran, Sam, right up there with Roger Taney, Melville Fuller and Gabriel Duvall, with a personality matched only by James Clark McReynolds.
Perhaps the first memorable impression anyone had of Mr. Alito was when he frowned and shook his head, mouthing “not true” as President Barack Obama criticized the Citizens United decision, which neutered an already feeble McCain-Feingold campaign finance law. The other justices — most were in attendance — sat silently, as they should, to maintain the apolitical air expected of them. But Alito? It was the first sign of something akin to a spoiled teen tired of living under mom and dad’s soul-crushing rules. Like those rules against bribery, which Alito also apparently finds offensive.
There is some contention over what Alito was saying was not true. Obama’s description of Citizens United having “reversed a century of law” was imprecise, according to Linda Greenhouse at The New York Times, who wrote the following:
“The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true though that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.”
Alito has never said what he was referring to that night, but if it was in response to Obama’s assertion, “I don’t think American elections should be bankrolled by America’s most powerful interests or worse by foreign entities,” Obama’s opinion proved far more judicious and prescient than Alito’s protest. Should or would an Alito apology be expected? Does a bear use a pay toilet?
While the Constitution contains no provision allowing Congress to regulate the Supreme Court, nothing in the Constitution obligates Congress to accept a court ruling. Lawmakers can pass legislation to limit or even negate a court decision. It can limit the court’s power by changing its jurisdiction or adding an amendment to the Constitution, such as… term limits for the justices. And yes, Congress has impeachment powers. It also has the power to expand the court if it so chooses. As Justice Sonia Sotomayor noted during oral arguments in last year’s Dobbs decision, “There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means.“
Alito also forgets that Congress has the power of the purse. Each year, the court requests a budget, which Congress approves. If Congress cut the court’s budget in half, there’d be nothing the justices could do about it. While Congress must pay the justices’ salaries and cannot reduce them while that justice is in office, lawmakers aren’t required to give them money for staff. Imagine reducing the SCOTUS budget to the amount needed to pay the justices’ salaries, forcing them to do something novel: Their own research and writing. Now wouldn’t that be delicious!
See class? This is how checks and balances work.
Of course, don’t expect the current Congress to do much of anything to the court, especially not with the MAGA fanatics in the House. If you think about it, Alito doesn’t differ much from those MAGA Republicans. He reflects the vast majority of them, walking contradictions of the Constitution they claim to uphold while possessing a sense of entitlement, pompous self-righteousness, and superiority over the rest of us, yet the whining, snowflakey reaction to the slightest criticism and playing the victim when presented with challenging but legitimate questions. Alito’s column in The Wall Street Journal reeks of all these qualities. He knows neither his place nor the laws he’s supposed to be judging.
Even if it were true (not true, not true!) that the Constitution contains no directive allowing Congress to regulate the Supreme Court, that’s no reason for the justices not to hold themselves to a set of ethics. It is absurd in the extreme that the highest court in the land has no written set of ethical standards. Their resistance to crafting one, their insistence they don’t need one because they all behave with such virtue, makes it even more urgent that they have one.
The Senate is trying. Illinois Democrat Dick Durbin has been pushing for legislation. Angus King, the Independent from Maine, and Alaska Republican Lisa Murkowski have introduced a bill, the Supreme Court Code of Conduct Act, requiring the court to develop an ethics code of conduct. Chief Justice John Roberts has said the court is “continuing to look” into it, which sounds more like a stall tactic. Then again, can we even trust the Supreme Court to adopt one, considering the behaviors and attitudes of some of its members?
Sorry, judges, you don’t deserve the nation’s respect just because you have the title of Supreme Court justice. You need to earn it. You may be outstanding students of the law, but you need a lesson in public relations. Acting above reproach is not enough. You have to be seen as acting above reproach. Counsel and judges alike must avoid even the appearance of impropriety. Yet Alito does the opposite. He wears his entitlement to flout codes of ethics like a badge of honor. He should be ashamed of himself. Instead, he flaunts his unethical conduct because that’s his nature or because he knows Republicans will give him their undying support. Alito knows he will never have to answer for his conduct to anyone, including his fellow justices.
And to think, everyone always thought it odd that Justice David Souter lived an anonymous, humble life in Washington, D.C., in a small temporary apartment and rejected all the trappings, so much so that he used to walk to and from work every day. He wrote with a fountain pen. At the end of every term, he would pack his car for the drive back to his farm in New Hampshire, where he’d spend the summer, returning to D.C. just in time for the first Monday in October. He has spent his retirement occasionally serving as a judge on routine cases in the circuit court, volunteering on local boards, and doing carpentry work at his farmhouse. He is a dying breed, the Yankee Republican. But instead of puzzling over his eccentricities, perhaps we should view him as a model of integrity, honor, humility and service as it should on the bench.
Do you want to know a fun fact? He’ll turn 84 on Sept. 17, which also happens to be Constitution Day.