Congress Can’t Force Ethics Code on Supreme Court, Alito Says

US Supreme Court Justice Samuel Alito says Congress has no power to force a binding ethics code on the high court, stressing there’s nothing in the Constitution giving lawmakers such authority.

In an interview with the Wall Street Journal’s editorial features editor published on Friday, Alito said he voluntarily follows financial and other disclosure rules that apply to lower court judges but was adamant that Democratic-led efforts on Capitol Hill were out of bounds.

“Congress did not create the Supreme Court,” Alito said. “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.”

Alito said he was speaking only for himself but noted that he thinks “it’s something we have all thought about.”

Chief Justice John Roberts has similarly expressed doubts about congressional authority to force an ethics code on the justices, as did Alito in a 2019 House hearing.

Legislation (S. 359) requiring the justices adopt a code of conduct was approved by the Senate Judiciary Committee on July 20, a measure pushed only by majority Democrats and fueled by controversy about alleged ethical lapses at the court.

Although both sides indicated the bill was going nowhere without Republican support, Democrats still promoted the proposals as urgently necessary to improve transparency at the conservative-led court that’s resisted calls over the years, including from a few Republicans, to take steps on its own.

Proponents also say a code is necessary to quell recent attacks on the court’s legitimacy. Alito, who has been critical of those challenges, said he wonders if “outright defiance” might be a result of such criticism.

“If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular,” Alito said. “So you can have a revival of the massive resistance that occurred in the South after Brown,” a reference to the court’s landmark 1954 ruling in Brown v. Board of Education that found segregation in public schools unconstitutional.

Criticism of the court mainly from progressives and particularly over ethics gained new attention this year following ProPublica reports about Justice Clarence Thomas and luxury vacations, real estate deals, and school tuition payments involving billionaire and GOP megadonor Harlan Crow that weren’t reported on financial disclosures.

Other ethics questions involving justices on both sides of the ideological divide, including Alito, and the court’s opaque recusal practices also fueled demands for accountability mainly by progressives.

Defiance, Chevron

Alito’s interview was the second this year to the Journal’s conservative-leaning editorial section. He also wrote an op-ed responding to ethics questions posted by ProPublica.

In the latest interview, Alito, 73, detailed differences in how the six conservative justices approach cases. He ranged from Thomas’ disregard of precedent to Roberts’ preference for incremental changes in law.

Alito also said he’s “not in favor of overruling important decisions just by pretending they don’t exist but refusing to say anything about them.”

That statement appeared to refer to Chevron deference, a court-made principle in which the judiciary typically defers to administrative agencies when interpreting statutes.

The court in recent terms has curtailed the doctrine without explicitly saying so. The justices next term will consider a explicit challenge to the doctrine in Loper Bright Enterprises v. Raimondo.