This is Bloomberg Law with June Brusso from Bloomberg Radio. The Supreme Court is not in session, but that hasn't stopped Justice Samuel Alito from creating controversy again. Last summer to Galla in Rome, Alito took on foreign leaders for criticizing the Court's decision overturning the constitutional right to abortion.
I had the honor of this term of writing, I think the only Supreme Court decision in the history of that institution that has been land based by a whole string of foreign leaders.
This summer, in the opinion pages of The Wall Street Journal, Alito took on Congress for trying to pass an ethics code for the justices, saying Congress has no power to regulate the Supreme Court. It wasn't the first time that the conservative justice has made such a claim, although it didn't attract.
As much attention.
In his testimony on the Supreme Court's budget at a House hearing in twenty nineteen, we.
Follow the code of conduct that applies to the lower courts, but we don't regard ourselves as being legally bound by it. And the reason for that is can be found in the structure of Article three of the Constitution, which says it's a judicial power shall be revested in one Supreme Court.
The irony is that, in defending himself against ethics concerns over his failure to report a phishing trip to Alaska in two thousand and eight paid for by a billionaire hedge fund manager whose business came before the court later, Alito raised new ethical concerns by commenting on pending legislation and giving an interview to a lawyer will be before the Court in a major.
Tax case this term.
Democrats like Senator Chris Murphy of Connecticut say that Alito is making the case for the need for an ethics code for the justices.
And so it is just wrong on the facts to say that Congress doesn't have anything to do with the rules guiding Supreme Court. In fact, from the very beginning, Congress has set those rules. But it is even more disturbing that Alito feels the need to insert himself into a Congressional debate.
Joining me is constitutional law expert David super, a professor at Georgetown Law School. So Alito said this about Congress, quote, no provision in the Constitution gives them the authority to regulate the Supreme Court period. What's your take on that interpretation?
Absurd? He needs to read the Constitution as.
Far as checks and balances. Is he arguing that there's no check on the Supreme Court, but the Supreme Court can check the other branches of government.
That's exactly what he's arguing. For someone who talks a great deal about checks and balances, he's proposedly an unchecked branch of government. And if this one thing we know about the Framers is they did not like unchecked power.
Democrats have been saying things like, you know, his seat is there because Congress expanded the court, and Congress sets the Supreme Court's budget and required the High Court to hear certain cases classes of disputes. Even the date that the Supreme Court term starts was set by Congress and the oath the justices take, how is he missing this.
Part of it?
And he says that he thinks it's something we the other Supreme Court justices have all thought about.
He has been known to make some very brazen, very strange assertions in the past. His defensive Citizens United comes to mind, and I think he got his desires way out in front of his legal analysis. The Supreme Court's jurisdiction on most matters is subject to such regulation and exceptions as Congress shall provide. One regulation, obviously, could be
that they have an ethics code. Congress could cut off most of their jurisdiction until such time as they adopt an ethics code, or indeed an ethics code prescribed by Congress.
What Aldo's really commenting on is this legislation that has gotten through the Senate Judiciary Committee.
So it would impose on the Supreme.
Court new requirements for financial disclosures and for recusals from cases in which the Justice may have a conflict of interest. So he's commenting on the constitutionality of pending legislation. Is that just unusual or is that unethical as well?
That's probably unethical. He is complaining about Congress intervening in the affairs of the Court, and he is intervening in the affairs of Congress. Justice Kaken, for example, has recused herself from many cases that were simply under discussion when she was at the Justice Department, not even clear that she was vocal in those discussions, and certainly they weren't public. He is now publicly taking a position on legislation that he could be asked to either rule on or comply with, or both.
David Rifkin, the lawyer who interviewed Alito for four hours and co wrote the opinion piece, is now representing litigants before the Supreme Court in a major tax case. And Rifkin also wrote a letter to two Democratic senators that defended Alito's travel and the activities of Leonard Leo, who's a well known conservative activist who led the Federalist Society for many years. Is that also unethical or an ethics concern?
I don't know a single lower court judge that would do that. I don't believe there has ever been a judge that I've practiced in front of that was willing to talk to me about anything outside the presence of opposing counsel, except in very, very narrow circumstances where the law explicitly allows ex party communication. I ran into a judge in a case I was litigating in the eye doctor, and he wouldn't talk to me. He wouldn't say hello, and I think he was right.
Well, he says that he's defending himself because quote nobody else would.
But it seems like he's raising more.
Ethics concerns as he's in the process of defending himself against ethic concerns.
It is a little bit circular and frankly, rather foolish. The first thing that a good lawyer does is not make the other side's case for it.
Democratic Senator Chris Murphy said, the Conservative Justices see themselves as a second legislative body that has just as much power and right to impose their political will on the country as Congress does, and it seems that with every move Alito is reinforcing that view.
It certainly does. This is model commentary for the imperial judiciary, and we don't have an imperial presidency, we don't have an imperial Congress, and there's no indigation that anybody ever intended an imperial judiciary.
The latest uproar about Alito was caused by his private jet travel with Paul Singer, whose hedge fund came before the court ten times in cases after that trip, and it was arranged by the conservative activist Leonard Leo. Is that something that Alito should have disclosed on his annual financial disclosure forms.
I think it is, and it certainly is an occasion for him to refuse himself. If you look at the grounds on which various justices have accused themselves in the past, it's for things much much smaller than that. Routinely, the principle in judicial ethics is that judges must not just
avoid impropriety, but avoid the appearance of impropriety. And taking extremely valuable trips that any number of people would pay a great deal of money for from someone who is done litigating in front of the court certainly creeds an appearance of impropriety. It's absurd to say that it doesn't.
When the Supreme Court left for summer recess, they were at a stalemate on adopting a formal ethics code for themselves, and according to CNN, the Chief Justice has been seeking unanimity among the nine justices.
Should the Chief Justice be doing more than.
That, he should. We're getting very close to the point where the Chief Justice is going to have to choose between standing up for ethics and being tired by the questionable behavior of his colleagues. If his colleagues won't come around, and it's pretty clear that at least two of them are very resistant to that, then he must either accommodate them and be implicated in their impropriety, or stand up to them and take the consequences.
Well, what are the consequences really with this Congress, which is not even likely to pass the ethics code? What are the consequences for this court? It seems like there are none.
I'm not sure that the legislation that the Democrats have written is ideally drafted, but I think there are a lot of Republicans that don't want to be associated with this sort of thing either. They would certainly not support anything retroactive that would target what Thomas Alito and others have already done. But I think it would be possible to come up with a code of ethics that would
get bipartisan support and could get passed through. The Chief Justice is concerned with how the public perceives the Court. He insists, for example, that they're no democratic or Republican justices and has been upset about that the Court is going to be perceive not just as ideological, but is
completely corrupt unless the Chief Justice acts. The fact is that five justices can issue an order, so I understand why he wants unanimity, but he can tell the holdouts that he's got five votes for a code of conduct, and he will push it through with or without their support.
Alito speculates about whether outright defiance of Supreme Court decisions by the public may be in the offing quote for the first time since the aftermath of Brown v. Board of Education, I mean, the Supreme Court doesn't have enforcement powers, does it?
There actually are pretty extensive enforcement powers. The question is will the various officials that are charged with enforcing these orders regard them as legitimate if they come from a court that is perceived to be first to sale to the highest bidder. And we haven't reached that point yet, but I think we're getting there. During Brown versus Board of Education, there was no serious question about the legitimacy of the court or the integrity of the court. People
just vehemently disagreed with the substance of its decisions. Here, however, the question is whether this court is acting independently and is making fair judgments on the cases that deserve to be respected. And the degree to which extraordinarily valuable privileges are being bestowed on justices by partisans raises questions about that.
He also said he seemed to say that you know he did.
He said, wait till second, he voluntarily follows disclosure rules that applied to lower court judges and executive branch officials. Seemed to indicate that he didn't really have to. It's a voluntary thing on his part.
Well, that's part of his imperial judiciary approach, that no one has the ability to check the Supreme Court if that's manifestly wrong.
His take on Justice Thomas, frankly was a little surprising to me.
Basically, he said he doesn't care about president. Quote.
Justice Thomas gives less weight to starry decisive than a lot of other justices, and he says, in a way it's a virtue of his jurisprudence. He sticks to his guns. Well, if the Supreme Court is not, and we've seen multiple instances in recent years, if they're not going to give weight to precedent, then what do they.
Give weight to.
Well, I think Justice Alido and Justice Thomas would say they give weight to an original interpretation of the Constitution, and that the original public meaning of the framers of the various parts of the Constitution is what Haro's legitimacy, not the decisions of the Supreme Court. If they were faithful in following that original public meaning. There might be
some credibility to that that. As Justice Jackson showed in the affirmative action cases, the originalist meaning is only getting carted out when it serves their particular ideological agenda.
Well, it always makes me laugh when laugh or cry. Perhaps when you look back at the confirmation hearings for Supreme Court justice and they all, every single one talk about respecting precedent.
I don't know how they can do it with a straight face.
Some of them probably think that when they're a nominee and get drunk with power when they're on the court, which is all the more reason that the Court.
Should not be above Obviously, if they can't get this ethics code pass, it's not going to happen with this Congress.
But would you be in favor of packing the court?
No, I think that effectively wrecks the court. These ethics violations may do the same thing. But I think the cutry deeps a viable Supreme Court, and I would favor taking steps to make sure that it has. I would absolutely favor changing the nomination and confirmation process so that we don't get political extremists on the court, and so that justices need to have a much broader level of respect and approval than just the coalition of the President
and the Senate majority. But packing the court would cause everyone to regard it as a largely worthless body.
What about term limits for the justices?
Certainly not nearly troubling is packing it. But I actually did a study of what would happen if we had had term limits in the past, and the answer is not very pretty. What you would end up having is a court that reflects current political passions much more. Some of the great moderating influences on the Court have been justices that were nominated and confirmed in a prior period.
Justice Stevens was regarded as a conservative when President Ford put him on the court, but events changed and he ended up being a major moderating force just as Suitor, very much the same way, just as White, not that I was a big fan of it, but was regarded as a liberal pick when he was put on and became a swing vote a moderating conservative voice as time
went on. If you make sure that all the justices were met didn't confirm within the last eighteen years, then you mostly have justices that are partisans to the contemporary political battles.
Leto said, you know, no one else is going to defend him. Do you think that Supreme Court justices should be allowed to defend themselves in this way? From you know, public outcry.
Much of the country was filled with impeach Earl Warren billboards throughout the nineteen sixties. An Eeral Warren was not giving public speeches defending himself. Other people defended him, but he believed it was improper to defend himself even against the most aggressive personal attacks of the kind that neither Justice Leado nor Justice Thomas have faced. It's simply not
true that no one else will defend them. The whole point of this problem is that they are closely intertwined with a right wing machine determined to pack and dominate the court, and the other members of that machine are more than happy to defend them.
So when this tax case comes before the court with Rifkin as one of the lawyers, it seems pretty obvious that Alito should recuse himself.
Yes, but if he doesn't, nothing could be done.
There's no good way to force that to happen. There is a little bit of a precedent in that the other eight justices concluded at one point that Justice Douglas was not sufficiently confident that he should be casting deciding votes and cases, and so they agreed towards the end of his time on the Court that they would set over for reargument the next year any case in which
Justice Douglas's vote was decisive. The other justices could simply decide that they will not vote for a resolution in which Justice leaders vote is decisive if he is conflicted, or any other justice his vote as decisive if they are conflicted.
I can't imagine this Court doing that. I guess we'll see.
It really depends on how they feel about their place and history, how they feel about their place in American society, in American government. This sort of corruption lends a very bad odor to the whole court. It would be nice to think that some of these justices feel strongly enough about integrity and about how they're regarded that they would be willing to force their colleagues to improve their ethical standards, even if those are colleagues that they mostly agree with.
Is there anything else that Congress can do if this ethics code fails, as it's likely to as it's done before.
One thing we haven't talked about is that Congress, under the Constitution has exclusive legislative authority over the District of Columbia. It has passed a lot of that to the DC City Council that it can legislate over at DC all
at once. And Congress could very easily pass a statute on judicial ethics for all judges in the District of Columbia that includes disclosure requirements for ucial requirements, and that criminalizes making gifts to any judge while one has matters that may come before that judge, And if it applies to all judges in the District of Columbia, would apply to the nine of them.
Also, what about I mean Congress controls the budget. Could Congress cut the budget or hold the budget up?
They can't defund the justices salaries. In theory, I suppose they could shut down much to the rest of the court, make them lay off their clerks and so on. I don't see much point to that when the simpler approach would simply be to say that this court no longer has jurisdiction over most kinds of cases that are subject to Congress's discretion until they enact the following Ethics Code.
That's something they could do. The Supreme Court in a case called Cline Hew that Congress may radically restrict their jurisdiction as long as it doesn't attempt to influence the outcome of particular cases. This wouldn't be trying to influence the outcome of particular cases. It would be trying to enforce a standard of ethics. So Congress would be within its rights to do that.
Thanks so much for being on the show. I always appreciate your insights. That's Professor David Super of Georgetown Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, and.
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I'm June Grosso, and you're listening to Bloomberg