The following editorial originally appeared in the St. Louis Post-Dispatch:
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. And it comes against a backdrop of ethics concerns that have undermined the court’s credibility, involving justices from both sides of its deep ideological divide.
The details vary: Justice 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 scandals, if at all, by denying wrongdoing 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.
The issue has prompted movement in Congress to impose 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 constitutional checks and balances between the three branches of government. The whole point of that concept is that no single branch holds unfettered power.
Alito hasn’t questioned checks and balances between the other 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.