Alito Is Wrong: Congress Can Impose Ethics Rules on the Supreme Court

In his informative interview with The Wall Street Journal, Justice Samuel Alito made some compelling points. He was correct in claiming the right to defend himself and the court against politically motivated accusations. But he was wrong in asserting that Congress lacks the power to compel the justices to enact and implement rules regulating their ethics.

Alito’s argument goes something like this: he correctly points out that “Congress did not create the Supreme Court”— the Constitution did. He is also correct that there is “no provision in the Constitution [that gives Congress] the authority to regulate the Supreme Court.”

The fallacy in his argument is his failure to consider the history following the adoption of our Constitution. Over the years since our founding, Congress has in fact regulated the supreme court in numerous ways: it has changed the number of justices, their salary, and the location and premises of the high court. And of course, it may impeach a justice if it finds that he or she committed treason, bribery, or other high crimes and misdemeanors. Although the Constitution lays out the mandatory jurisdiction of the Supreme Court, Congress has played a role in regulating even that important aspect of the Supreme Court’s work.

Supreme Court Associate Justice Samuel Alito poses for an official portrait at the East Conference Room of the Supreme Court building on Oct. 7, in Washington, DC.
Alex Wong/Getty Images

Alito correctly points out that no specific provision of the Constitution deals with the role of Congress in regulating the ethics of the justices, but he fails to note that no provision of the Constitution explicitly authorizes the Supreme Court to overrule actions of Congress and other branches of the government. Yet they have been doing so since Marbury v. Madison in 1803 and its progeny.

Alito may be making an extremely broad claim, namely that the powers of Congress and the Supreme Court are limited by the explicit grants of authority enumerated in Articles 1 and 3 of the Constitution. He admits that his “is a controversial view,” but it may be even more controversial than it sounds. It may challenge the very concept of judicial review, because of the absence of any provision in the constitution explicitly authorizing the Supreme Court to strike down legislative or executive actions.

As former Chief Justice John Marshall said in justifying his expansive view of constitutional interpretation: “We must never forget that it is a Constitution we are expounding… intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” A similar argument can be made in favor of the unenumerated power of Congress to regulate the ethics of justices. Indeed, there is more textual support in the Constitution for Congress to regulate the ethics of justices than there is for justices to pass judgment on the laws of Congress. Article 3 provides that “the judges both of the Supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times receive for their services a compensation…” It also says that the Supreme Court’s appellate jurisdiction in the few cases other than where it has original jurisdiction is subject to “such exceptions [and] regulations as the Congress shall make.”

These provisions strongly imply that Congress has the power to regulate good behavior, including ethical behavior, along with the power to set the amount of compensation and the appellate jurisdiction.

To be fair to Alito’s controversial argument, the framers of the Constitution did not focus on the precise issue of Congress’ power to regulate the ethics of justices, whereas Alexander Hamilton and some others did discuss judicial review, without explicitly providing for it in the Constitution. The fact that it was discussed and omitted cuts both ways, as does the fact that regulating the ethics of justices was not mentioned.

Our system of governance is based on the separation of powers and checks and balances. The judiciary is an independent branch but it—like the other branches—is subject to checks. Unlike the legislative and executive branches, the judicial branch is not subject to the ultimate check in any democracy, namely periodic elections. This makes it even more important that justices be subject to the legislative check of compelled ethical rules and the executive check of prosecution for violation of these rules.

The underlying purpose of checks and balances is to assure accountability and to prevent any branch or institution of government from operating above the law. It would turn that purpose on its head if the Supreme Court could exempt itself from being bound by the kind of ethics rules that bind the elected branches.

Follow Alan Dershowitz on Twitter @AlanDersh and Facebook @AlanMDershowitz.
His new podcast, “The Dershow,” is on Spotify, Apple Podcasts, and YouTube He is the author of Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law.

The views expressed in this article are the writer’s own.

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