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Justice Samuel Alito Says Congress Has No Right To Regulate Supreme Court

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OPINION: This article may contain commentary which reflects the author's opinion.


Supreme Court Justice Samuel Alito has hit back hard against Democrat Congress members who have criticized the court.

“Congress did not create the Supreme Court”—the Constitution did, the Justice said in an interview with The Wall Street Journal.

“I know this is a controversial view, but I’m willing to say it,” the Justice said. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”

The reference was to Article III, section 1 of the Constitution, that says: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

Republicans argue that the provision gives Congress the authority to regulate lower courts and even abolish them but have no such authority when it comes to the Supreme Court.

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And if there was a dispute about this the only branch that court arbitrate that would be the judicial branch which would ultimately lead to the Supreme Court deciding the matter.

“I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about,” he said.

“I marvel at all the nonsense that has been written about me in the last year,” the Justice said.

When faced with political attacks, “the traditional idea about how judges and justices should behave is they should be mute” and that others, especially “the organized bar,” should defend them.

“But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself,” he said.

On July 20 the Democrat led Senate Judiciary Committee passed the Supreme Court Ethics, Recusal, and Transparency Act (SCERT) of 2023, which Republicans have argued is unconstitutional.

It is not known if or when the legislation would get a vote from the entire Senate, and even if it did the legislation is unlikely to pass the Republican controlled House, which it would need to do before getting to President Joe Biden’s desk to be signed into law.

But, again, even if it did it would ultimately be likely to receive a challenge that would then take it to the courts, and ultimately to the Supreme Court itself.

The act would direct the Supreme Court to create its own code of ethics and it would require Justices to recuse themselves from certain cases, which is something they decide on their own currently.

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It would also require the Justices to disclose gifts, including paid travel, and income information and would allow members of the public to file complaints against individual justices which would be arbitrated by a five judge panel from lower courts.

It would allow any citizen to file a motion to have a Justice removed from a case.

Republicans have argued that the only reason Democrats want these revisions is because the Court, which has a conservative majority, has been issuing decisions that the Democrats do not like.

The Supreme Court is “the only court in the country, perhaps the only court in the world, with no ethics process at all,” Democrat Sen. Sheldon Whitehouse said at a committee hearing on July 20 when he introduced the legislation.

“Then came the news that six politically active right wing-billionaires have been paying household expenses, engaging in financial transactions, and providing massive secret gifts of travel and hospitality for at least two justices,” the senator said.

“We are here because the highest court in the land has the lowest standard of ethics anywhere in the federal government. And justices have exhibited much improper behavior, not least in hapless efforts to excuse the misdeeds,” he said.

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