Alito Asserts the Court Is Ethically Untouchable. That's Why It Shouldn't Be.

By Daily Editorials

August 3, 2023 5 min read

Those who suspect that Justice Samuel Alito views the Supreme Court as some imperial Star Chamber that is unaccountable to Congress, the public or anyone else have recently gained a powerful new ally in that theory: Alito himself.

In a recent interview with The Wall Street Journal's opinion section, Alito lashes out at the growing consensus that Congress should impose mandatory ethics standards on the justices, considering they refuse to do it themselves.

"No provision in the Constitution gives them the authority to regulate the Supreme Court," he says. "Period."

Legal scholars and others have pounced on the assertion as just plain wrong, constitutionally. It's also a distressing confirmation of the anti-democratic instincts of a man who, with his fellow court conservatives, has lately wielded his unelected power in precedent-breaking, culture-transforming ways — regarding abortion rights in particular — that would never pass muster at the polling place.

That comes against a backdrop of ethics concerns that have undermined the court's credibility lately, involving justices from both sides of its deep ideological divide.

The details vary: Justices Clarence Thomas has accepted luxury trips and other perks from a prominent Republican donor; Justice Neil Gorsuch made a big real estate sale to a lawyer whose firm has business before the court; Justice Sonia Sotomayor's staff has prodded public institutions to buy her memoir.

The justices for the most part have responded to the mini-scandals, if at all, by denying wrongdoing and/or saying they will be more careful going forward.

Alito had a different approach when ProPublica was preparing to report in June that he had accepted private jet travel to a luxury fishing trip from a politically active billionaire: He preempted the story with a defiant Wall Street Journal op-ed making the tone-deaf argument that he had saved the taxpayers travel-security expenses by accepting the private ride.

He also insisted he technically had no legal obligation to disclose the trip, nor to recuse himself from cases before the court in which the billionaire was involved.

The latter assertions are true, and that's the problem. Unlike every other judge in America, the court's nine justices aren't bound by a mandatory set of ethics standards regarding conflicts of interest and recusal.

They have long asserted that they adhere to such standards voluntarily, so there is no need to officially impose them. For an answer to that assertion, re-read the preceding paragraphs.

The issue has prompted movement in Congress to impose mandatory new ethics standards on the justices. Which in turn prompted Alito's claim, in the extensive Wall Street Journal interview, that the court is effectively untouchable by anybody. (One of the two writers of the coddling opinion piece, it discloses, is an attorney with a case pending before the court. You can't make this stuff up.)

At first half-blush, it might make sense — surely the high court must be utterly independent from Congress to function, right? — but that ignores the entire concept of constitutional checks and balances between the three branches of government. The whole point of that concept is that no single branch holds unfettered power of the kind Alito appears to claim.

As numerous legal scholars and other critics have pointed out in response to Alito's comments, Congress already requires financial disclosure of gifts and stock transactions from the justices. Congress also determines the size of the court, its budget (including the justices' pay), the dates of its sessions and other basic structural issues.

Congress similarly imposes ethics standards, budgetary control and other power over the executive branch; the president, meanwhile, can veto actions of Congress. Alito hasn't questioned these and other checks and balances between the other two branches of government. It's only his own branch, apparently, that is untouchable.

It's not. Congress should be cautious about overstepping its authority regarding the court, but mandatory ethics standards of the kind that govern other judges would be constitutionally defensible and could help restore public confidence in the court. If Alito is concerned that it would threaten a creeping loss of judicial independence, he should champion a move for the court to self-impose those standards.

REPRINTED FROM THE ST. LOUIS POST-DISPATCH

Photo credit: Andrew MacDonald at Unsplash

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