{"id":1170630,"date":"2023-08-04T12:12:40","date_gmt":"2023-08-04T12:12:40","guid":{"rendered":"https:\/\/jacobin.com\/2023\/08\/justice-samuel-alito-code-of-ethics-supreme-court\/"},"modified":"2023-08-04T12:18:57","modified_gmt":"2023-08-04T12:18:57","slug":"justice-samuel-alitos-ethics-about-face-doesnt-inspire-confidence-in-the-court","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2023\/08\/04\/justice-samuel-alitos-ethics-about-face-doesnt-inspire-confidence-in-the-court\/","title":{"rendered":"Justice Samuel Alito\u2019s Ethics About-Face Doesn\u2019t Inspire Confidence in the Court"},"content":{"rendered":"\n \n\n\n\n

When Justice Samuel Alito was securing his place on the Supreme Court, he promised to adhere to ethics laws from Congress. But after failing to comply with anti-corruption laws, Alito is now insisting lawmakers have no authority to regulate the court.<\/h3>\n\n\n
\n \n
\n Justice Samuel Alito testifies about the Supreme Court's budget March 7, 2019 in Washington, DC. (Chip Somodevilla \/ Getty Images)\n <\/figcaption> \n<\/figure>\n\n\n\n\n \n

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 \u201cthe authority to regulate the Supreme Court \u2014 period,\u201d claiming that this is an issue he and his fellow justices \u201chave all thought about.\u201d<\/p>\n

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\u2019 acceptance and disclosure of gifts, limit their outside employment income, and mandate recusal in some circumstances.<\/p>\n

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.<\/p>\n

As\u00a0ProPublica<\/em>\u00a0has<\/a>\u00a0reported<\/a>, at least two current Supreme Court justices \u2014 Alito and Clarence Thomas \u2014 have apparently failed to comply with a federal gift law that Alito pledged to follow.<\/p>\n

\u201cThey certainly said in their [Senate Judiciary questionnaires] that they would follow those laws,\u201d University of Virginia law professor and judicial ethics expert Amanda Frost told the\u00a0Lever. <\/em>\u201cThey did not say anything about Congress\u2019s 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.\u201d<\/p>\n

The Supreme Court did not respond to a request for comment.<\/p>\n

It is illegal to lie to Congress. After the Supreme Court overturned\u00a0Roe v. Wade<\/em>\u00a0last year, ending federal abortion protections, some congressional Democrats\u00a0raised the prospect<\/a>\u00a0of impeaching the conservative justices who misled lawmakers during the confirmation process about their views on key precedents.<\/p>\n

In June,\u00a0ProPublica<\/em>\u00a0reported<\/a> that Alito accepted a flight on billionaire Paul Singer\u2019s private jet before the Supreme Court ruled on a business matter involving Singer\u2019s hedge fund \u2014 a decision that proved lucrative for his firm. Alito failed to disclose the private jet trip, in apparent violation of long-standing federal ethics rules.<\/p>\n

Alito claimed in a\u00a0Wall Street Journal<\/em>\u00a0editorial<\/a>\u00a0that he had not recused from the case involving Singer\u2019s hedge fund because \u201cI was unaware of his connection with any of the listed entities, and I had no good reason to be aware of that,\u201d even though Singer\u2019s role in the court battle was widely reported.<\/p>\n

The Alito revelation followed a\u00a0series<\/a>\u00a0of reports<\/a>\u00a0about Thomas accepting undisclosed luxury gifts from Republican megadonor Harlan Crow, as well as news that conservative activist and Supreme Court architect Leonard Leo\u00a0steered<\/a> secret consulting payments to Thomas\u2019s wife. The wave of investigative reports have fueled calls for Congress to impose a formal code of ethics upon the Supreme Court.<\/p>\n

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<\/a>\u00a0instituting a new ethics code themselves, but they have been unable to reach a unanimous agreement.<\/p>\n

On Thursday, in response to questions about congressional efforts to require the Supreme Court to adopt a code of ethics, Justice Elena Kagan\u00a0reportedly told<\/a> an audience\u00a0at the 9th Circuit Judicial Conference in Oregon, \u201cOf course Congress can regulate various aspects of what the Supreme Court does.\u201d<\/p>\n

\u201cIf it comes back with something, we\u2019ll have the chance to say something about it,\u201d she\u00a0added<\/a>.<\/p>\n\n \n\n \n \n \n

\u201cSomething We Have All Thought About\u201d<\/h2>\n \n

Now that Democrats in Congress are weighing Supreme Court ethics legislation, Alito and two of the court\u2019s\u00a0wealthy<\/a>\u00a0benefactors<\/a>, Crow and Leo, have started arguing that Congress cannot impose ethics laws on the Supreme Court.<\/p>\n

\u201cI know this is a controversial view, but I\u2019m willing to say it,\u201d Alito\u00a0recently told<\/a>\u00a0the\u00a0Wall Street Journal<\/em>. \u201cNo provision in the Constitution gives them the authority to regulate the Supreme Court \u2014 period.\u201d<\/p>\n

Asked whether his colleagues agree, Alito\u00a0said<\/a>, \u201cI don\u2019t know that any of my colleagues have spoken about it publicly, so I don\u2019t think I should say. But I think it is something we have all thought about.\u201d<\/p>\n

Eight current Supreme Court justices \u2014 including Alito \u2014 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\u00a0Lever<\/em>.<\/p>\n

The 1948 law mandated Supreme Court justices recuse themselves \u201cin any proceeding in which [their] impartiality might reasonably be questioned,\u201d while the Ethics Reform Act of 1989\u00a0added regulations<\/a>\u00a0on justices\u2019 acceptance and disclosure of gifts and\u00a0set limits<\/a>\u00a0on their outside employment income.<\/p>\n

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.<\/p>\n

Responding to the Senate Judiciary Committee\u2019s questionnaire in 2005, Alito\u00a0wrote<\/a>: \u201cIf 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. \u00a7 455, and any other relevant guidelines.\u201d<\/p>\n

Chief Justice John Roberts similarly wrote in his 2005\u00a0questionnaire<\/a>: \u201cIf 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. \u00a7 455, and any other relevant prescriptions.\u201d<\/p>\n

Justices\u00a0Kagan<\/a>,\u00a0Sonia Sotomayor<\/a>,\u00a0Neil Gorsuch<\/a>,\u00a0Brett Kavanaugh<\/a>,\u00a0Amy Coney Barrett<\/a>, and\u00a0Ketanji Brown Jackson<\/a>\u00a0all made similar pledges in their own Senate Judiciary Committee questionnaires.<\/p>\n

\u201cFor the last thirty years, as far as the records I\u2019ve 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,\u201d said Gabe Roth, executive director of Fix the Court.<\/em><\/p>\n

He continued: \u201cYou\u2019re going on the Supreme Court \u2014 you\u2019re basically untouchable, nobody is going to be impeached and removed \u2014 and the idea that you\u2019re not going to do more than just copy and paste the previous nominees\u2019 boilerplate answers on ethics really isn\u2019t a good look. It does not instill confidence in the ethical capabilities of the members of the court.\u201d<\/p>\n

The only justice who offered different ethics answers during his confirmation process was Thomas, who was nominated much earlier.<\/p>\n

Thomas wrote in his 1991 confirmation\u00a0questionnaire<\/a>\u00a0that he would follow the Code of Conduct for United States Judges, adding: \u201cIn case of conflicts of interest, I will either refuse or divest, as needed.\u201d<\/p>\n\n \n \n \n

\u201cSo Wrong as to Be Laughable\u201d<\/h2>\n \n

Ethics experts reject the idea that Congress cannot regulate the court.<\/p>\n

\u201cThe idea that the Supreme Court is beyond all powers of Congress to regulate is so wrong as to be laughable,\u201d said Frost. \u201cWhich makes me think Alito has a different agenda \u2014 perhaps to give support to the people in Congress who don\u2019t want the ethics legislation.\u201d<\/p>\n

Yale University law and history professor Samuel Moyn said during a recent\u00a0Lever Live<\/em>\u00a0event<\/a>\u00a0that Congress \u201cabsolutely\u201d can impose ethics rules on the Supreme Court, adding that \u201cCongress can do what it wants.\u201d<\/p>\n

Alito is not the first justice to publicly question whether Congress can impose ethics rules on the Supreme Court. Roberts previously\u00a0did so in a memo<\/a>\u00a0in 2011, when lawmakers were considering an effort to improve ethics at the high court.<\/p>\n

\u201cCongress has directed justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income,\u201d wrote Roberts. \u201cThe court has never addressed whether Congress may impose those requirements on the Supreme Court. The justices nevertheless comply with those provisions.\u201d<\/p>\n

He added, \u201cAs in the case of financial reporting and gift requirements, the limits of Congress\u2019s power to require recusal have never been tested.\u201d<\/p>\n

Frost noted that Congress has placed many regulations on the high court.<\/p>\n

\u201cWithout Congress\u2019s legislation regulating the court, we wouldn\u2019t know what size the court is, we wouldn\u2019t know where it should meet, we wouldn\u2019t know which cases it should hear,\u201d she said, adding that Congress writes the oath of office for justices, \u201cwhich of course is intended to ensure that the justices behave ethically.\u201d<\/p>\n\n \n \n \n\n \n \n

You can subscribe to David Sirota\u2019s investigative journalism project, the\u00a0Lever<\/i>, here<\/a>.<\/p>\n\n\n\n

This post was originally published on Jacobin<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

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 \u201cthe authority to regulate the Supreme Court \u2014 period,\u201d claiming that this is an issue he and his fellow justices \u201chave all thought about.\u201d But when Alito and most of [\u2026]<\/p>\n","protected":false},"author":1649,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1170630"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/1649"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=1170630"}],"version-history":[{"count":1,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1170630\/revisions"}],"predecessor-version":[{"id":1170631,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1170630\/revisions\/1170631"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=1170630"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=1170630"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=1170630"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}