WASHINGTON (CN) — The top Democrat on the Senate Judiciary Committee took Justice Samuel Alito to task Wednesday for what he framed as irresponsible meddling in the ongoing effort to legislate ethics reform at the U.S. Supreme Court.
Motivated by a string of revelations that several justices have engaged in ethically questionable conduct, Senate Democrats have for months argued that the high court is in desperate need of a formal set of ethical standards. A bill that would force the Supreme Court to adopt such a framework narrowly cleared the upper chamber’s legal panel last month.
The move chafed congressional Republicans, who for years have trumpeted the party's supermajority control of the nation's highest court as a boon to loyal conservative voters. They frame the Democrats’ legislation as unconstitutional and retaliatory encroachment of the separation of powers.
Joining the GOP in consternation of Democrats’ strive toward court reform was Justice Alito, a George W. Bush appointee himself under ethics fire over a 2008 fishing trip he took with a Republican billionaire who later had business before the court. Alito took to The Wall Street Journal’s opinion section on Friday to echo the argument that the attempt at congressional oversight of the high court was unconstitutional.
“Congress did not create the Supreme Court,” Alito said, quoted in a piece by James Taranto, who is the Journal's editorial features editor, and David B. Rivkin Jr., a Washington lawyer. “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Those comments did not sit well with Democrats. Senator Dick Durbin, who chairs the judiciary committee, in particular accused Alito Wednesday of attempting to put his finger on the scales of the Supreme Court ethics legislation.
“Justice Alito is providing speculative public commentary on a bill that is still going through the legislative process,” the Illinois Democrat said in a statement. “Let’s be clear: Justice Alito is not the 101st member of the United States Senate. His intervention in Article I activity is unwise and unwelcome.”
Overseeing the ethical conduct is firmly within the judiciary committee’s jurisdiction, Durbin argued. “Ensuring ethical conduct by the justices is critical to the Court’s legitimacy,” he added.
Paul Berman, a professor at the George Washington University School of Law, said that Durbin was right to be upset about Alito’s comments.
“I believe that Alito was very much out of line to take to the pages of The Wall Street Journal to make a statement about the legality of legislation that has not been enacted yet, and that might come before the court,” Berman said in an interview. “That is an intervention that is completely inappropriate from my point of view.”
Further, Berman observed, Alito should not have written off Democrats’ argument that Congress has the authority to regulate the Supreme Court.
“The Constitution says the Supreme Court has to exist,” Berman said, “but Congress can limit the court’s jurisdiction — and has on occasion.”
Congress has also created ethics rules for the executive branch, despite the fact that it, too, is a separate branch of government, he added. “I think it’s at least plausible to think that Congress could create ethics rules for Supreme Court justices.”
Gabe Roth, executive director of Supreme Court reform advocacy group Fix the Court, said he thought that Alito was goading Durbin with his comments about congressional authority. “I’m pleased to see that the chairman is not backing down,” Roth said.
In the op-ed interview, Alito said he was speaking out to defend himself against “all the nonsense that has been written about me in the last year.”
“At a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself,” the justice said.
Rivkin, the lawyer who shared Friday's byline, is set to argue a major tax case before the Supreme Court in its upcoming term. Rivkin is also working as counsel for Leonard Leo, the conservative activist who organized Alito’s 2008 fishing trip.
Previously, the attorney rebuffed requests from lawmakers for the details of Leo’s financial dealings with Supreme Court justices. In a July 25 letter the attorney accused Durbin and Rhode Island Senator Sheldon Whitehouse of undertaking a politically charged investigation and violating Leo’s First Amendment rights.
Berman said that Alito agreeing to sit for an interview with a person who will soon have business before the court does him no favors. “I don’t know whether to call it ironic or something worse,” he said, “that in the course of arguing that the Supreme Court should not be subjected to congressional ethics rules, Alito might well have been seen to have violated yet another ethics rule.”
The Supreme Court, which currently has no formal code of ethical standards, has been reticent to adopt such a framework. Chief Justice John Roberts attempted in April to placate Senate Democrats with a statement of judicial ethics, signed by all nine justices, but the move was roundly rejected by Durbin and other lawmakers.
Berman said that, despite its hesitation, the Supreme Court would do well to consider establishing an ethics code.
“It’s very important that the Supreme Court be seen to be a non-political, rule of law institution,” Berman said. “If the court loses that, then it loses legitimacy and it loses power. If you care about the Supreme Court having perceived legitimacy, if you’re one of the justices, I think it’s incumbent on you to make sure your ethical behavior is of the highest order.”
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