Justice Alito has Stern Words for Sheldon Whitehouse and His Attempt to Grab Control of the Supreme Court

(AP Photo/Cliff Owen, File)

Supreme Court Justice Samuel Alito removed all doubt about how the US Supreme Court would respond to efforts by progressive politicians to dictate its internal workings. 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.”

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Justice Alito says he voluntarily follows disclosure statutes that apply to lower-court judges and executive-branch officials; so do the other justices. But he notes that “Congress did not create the Supreme Court”—the Constitution did.

Do the other justices agree? “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.”

What Alito is referring to is Rhode Island Senator Sheldon Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act. This bill which made it out of the Judiciary Committee last week on a party-line vote purports to improve public confidence in the Supreme Court by imposing a set of “ethics” regulations and creating a mechanism to enforce them. While camouflaged as a bill to improve ethics and transparency on the part of the Supreme Court, this is really part of a vendetta on the part of Democrats to damage justices they dislike and delegitimize Supreme Court decisions with which they disagree.

Clarence Thomas has been the subject of a long-running, coordinated slander campaign designed to discredit him. Not only has his jurisprudence been wildly mischaracterized, but his very existence as a Black conservative converted into all manner of incredibly racist tropes. Neil Gorsuch was attacked for being a member of an LLC that owned a piece of property in Colorado. Alito, himself has been attacked because of his friendship with leading light of the Federalist Society, Leonard Leo.

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Whitehouse disagrees.

“The court’s financial disclosure requirements are a law, passed by Congress; its recusal requirements are a law, passed by Congress; and the body that implements financial disclosure and code of conduct issues is the Judicial Conference, a body created by Congress,” Whitehouse said before the July 20 committee vote. “Please let’s not pretend Congress can’t make amendments to laws Congress has passed or oversee agencies Congress has created.”

“For decades the justices themselves have never objected to, and have actually, repeatedly and without complaint, complied with this structure, so even the court has demonstrated it doesn’t believe that canard,” Whitehouse added.

This response is just about what one would expect of a lackwit like Whitehouse. The financial disclosure rules apply across the US government, except for people like Nancy Pelosi, whose husband became very wealthy based on “timely” trades. There are no “recusal requirements.” The law contains general recusal guidelines that are left to the judge’s conscience to adjudicate. The Judicial Conference is a policymaking body, not a regulatory or enforcement organization. The critical difference is that none of the things Whitehouse talks about rises to the level of acting as an enforcement body in the judiciary, and, as Alito points out, the Supreme Court is not an agency created by Congress; it is part of a separate branch of government created by the Constitution.

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Alito probably has the support of at least seven of the members of the Supreme Court.

Chief Justice John Roberts has raised doubts on at least a couple of occasions about Congress’ power to regulate the conduct of the court and the justices.

In an annual report on the judiciary in 2011, Roberts observed: “As in the case of financial reporting and gift requirements, the limits of Congress’s power to require recusal have never been tested.” His statement was also quoted in a compendium of ethics principles that was endorsed by all nine current justices and attached to a letter Roberts sent to the Senate panel in April declining their request that he appear to testify about the court’s ethics practices.

A couple are too partisan and don’t have the intelligence to see how Whitehouse’s law if found to be Constitutional, could be used by special interest groups to harass Justices.

Whitehouse’s bill isn’t going anywhere. Even if it gets to the point of voting in the Senate, which is doubtful, the House isn’t going to go along with it. But we might be better off if it did. The law would be immediately challenged and undoubtedly ruled unconstitutional. This would clarify what the “separation of powers” means for Whitehouse and those like him.

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