As the Senate considers legislation requiring the Supreme Court to adopt a code of ethics, Justice Samuel Alito recently insisted that lawmakers do not have “the authority to regulate the Supreme Court — period,” claiming that this is an issue he and his fellow justices “have all thought about.”
But when Alito and most of his colleagues were trying to secure their confirmations to the high court, they promised the Senate Judiciary Committee they would adhere to ethics laws from Congress that regulate justices’ acceptance and disclosure of gifts, limit their outside employment income, and mandate recusal in some circumstances.
If Alito or any of the other justices had argued during their confirmation processes that Congress can't regulate the Supreme Court, or that justices are not obligated to obey ethics laws, they may not have been approved by the Senate.
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“They certainly said in their [Senate Judiciary questionnaires] that they would follow those laws,” University of Virginia law professor and judicial ethics expert Amanda Frost told The Lever. “They did not say anything about Congress’ authority to regulate them, frankly because it is obvious that Congress has that authority. Alito seems to be taking a new position from what he took before Congress [during] his confirmation.”
The Supreme Court did not respond to a request for comment.
It is illegal to lie to Congress. After the Supreme Court overturned Roe v. Wade last year, ending federal abortion protections, some congressional Democrats raised the prospect of impeaching the conservative justices who misled lawmakers during the confirmation process about their views on key precedents.
In June, ProPublica reported that Alito accepted a flight on billionaire Paul Singer’s private jet before the Supreme Court ruled on a business matter involving Singer’s hedge fund — a decision that proved lucrative for his firm. Alito failed to disclose the private jet trip, in apparent violation of longstanding federal ethics rules.
Alito claimed in a Wall Street Journal editorial that he had not recused from the case involving Singer’s hedge fund because “I was unaware of his connection with any of the listed entities, and I had no good reason to be aware of that,” even though Singer’s role in the court battle was widely reported.
The Alito revelation followed a series of reports about Thomas accepting undisclosed luxury gifts from Republican megadonor Harlan Crow, as well as news that conservative activist and Supreme Court architect Leonard Leo steered secret consulting payments to Thomas’ wife. The wave of investigative reports have fueled calls for Congress to impose a formal code of ethics upon the Supreme Court.
While justices are already bound by several federal ethics laws, and voluntarily comply with the code of conduct for lower court judges, the high court does not have its own ethics code. The justices have reportedly been considering instituting a new ethics code themselves, but they have been unable to reach a unanimous agreement.
On Thursday, in response to questions about congressional efforts to require the Supreme Court to adopt a code of ethics, Justice Elena Kagan reportedly told an audience at the 9th Circuit Judicial Conference in Oregon, “Of course Congress can regulate various aspects of what the Supreme Court does.”
“If it comes back with something, we’ll have the chance to say something about it,” she added.
“Something We Have All Thought About”
Now that Democrats in Congress are weighing Supreme Court ethics legislation, Alito and two of the court’s wealthy benefactors, Crow and Leo, have started arguing that Congress cannot impose ethics laws on the Supreme Court.
“I know this is a controversial view, but I’m willing to say it,” Alito recently told the Wall Street Journal. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Asked whether his colleagues agree, Alito said, “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.”
Eight current Supreme Court justices — including Alito — explicitly promised senators during their confirmation processes that they would follow ethics statutes passed by Congress in 1948 and 1989, according to records reviewed by The Lever.
The 1948 law mandated Supreme Court justices recuse themselves “in any proceeding in which [their] impartiality might reasonably be questioned,” while the Ethics Reform Act of 1989 added regulations on justices’ acceptance and disclosure of gifts and set limits on their outside employment income.
The justices additionally pledged to follow the Code of Conduct for United States Judges, which also regulates gifts, even though that code does not apply to the Supreme Court.
Responding to the Senate Judiciary Committee’s questionnaire in 2005, Alito wrote: “If confirmed, in matters involving recusal I would seek to follow the Code of Conduct for United States Judges (although it is not formally binding on justices of the Supreme Court of the United States), the Ethics Reform Act of 1989, 28 U.S.C. § 455, and any other relevant guidelines.”
Chief Justice John Roberts similarly wrote in his 2005 questionnaire: “If confirmed, I would resolve any conflict of interest by looking to the letter and spirit of the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States), the Ethics Reform Act of 1989, 28 U.S.C. § 455, and any other relevant prescriptions.”
“For the last 30 years, as far as the records I’ve been able to find, the justices have been writing the same boilerplate language in their Senate Judiciary questionnaires, which to me is an indictment against the seriousness with which they take their ethical responsibilities,” said Gabe Roth, executive director of Fix the Court.
He continued: “You’re going on the Supreme Court — you’re basically untouchable, nobody is going to be impeached and removed — and the idea that you’re not going to do more than just copy and paste the previous nominees’ boilerplate answers on ethics really isn’t a good look. It does not instill confidence in the ethical capabilities of the members of the court.”
The only justice who offered different ethics answers during his confirmation process was Thomas, who was nominated much earlier.
Thomas wrote in his 1991 confirmation questionnaire that he would follow the Code of Conduct for United States Judges, adding: “In case of conflicts of interest, I will either refuse or divest, as needed.”
“So Wrong As To Be Laughable”
Ethics experts reject the idea that Congress cannot regulate the court.
“The idea that the Supreme Court is beyond all powers of Congress to regulate is so wrong as to be laughable,” said Frost. “Which makes me think Alito has a different agenda — perhaps to give support to the people in Congress who don’t want the ethics legislation.”
Yale University law and history professor Samuel Moyn said during a recent Lever Live event that Congress “absolutely” can impose ethics rules on the Supreme Court, adding that “Congress can do what it wants.”
Alito is not the first justice to publicly question whether Congress can impose ethics rules on the Supreme Court. Roberts previously did so in a memo in 2011, when lawmakers were considering an effort to improve ethics at the high court.
“Congress has directed justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income,” wrote Roberts. “The court has never addressed whether Congress may impose those requirements on the Supreme Court. The justices nevertheless comply with those provisions.”
He added, “As in the case of financial reporting and gift requirements, the limits of Congress’s power to require recusal have never been tested.”
Frost noted that Congress has placed many regulations on the high court.
“Without Congress’s legislation regulating the court, we wouldn’t know what size the court is, we wouldn’t know where it should meet, we wouldn’t know which cases it should hear,” she said, adding that Congress writes the oath of office for justices, “which of course is intended to ensure that the justices behave ethically.”