Justice Alito is starting to become almost as much fun as a Supreme Court justice as Clarence Thomas—although Thomas has the ‘advantage’ of bringing out the Democrats’ true racist colors on a regular basis. Any time Clarence Thomas clears his throat, ‘Uncle Tom’ and other racist terms seem to trend on Twitter.
But Alito is getting high on their hate-list and this time he invoked their anger by giving an interview with the Wall Street Journal on Friday that included this passage:
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. ‘I know this is a controversial view, but I’m willing to say it,’ he says. ‘No provision in the Constitution gives them the authority to regulate the Supreme Court—period.’
This naturally led to much anger and gnashing of teeth, with radical Democrats declaring that Congress should definitely pass such regulations. And Ian Milhouse Millhiser has a plan to outsmart the Supreme Court if they dared to resist:
One easy way Congress could impose an ethics code on SCOTUS is to include a provision stating that, if the justices even thought about striking it down, all funding for the Court's staff will immediately be reduced to zero, and the justices are evicted from the SCOTUS building.
— Ian Millhiser (@imillhiser) July 28, 2023
It's so easy! *rolls eyes*
Look, we are sympathetic to the notion that sometimes Twitter is for trying out ideas and workshopping them. But this idea is just dumb.
Let’s put aside that ‘even thought about’ language. We doubt he is dumb or paranoid enough to believe we could detect the thoughts of any person. (Or does Ian go around wearing tinfoil around his head to protect himself from the evil thought rays? Does he think the freemasons are trying to monitor his empty brain?) We will assume he means that if they actually strike the provision down, then it triggers these punishments.
Gee, how could the Supreme Court ever outsmart such a tricksy plan? Well, one of the people replying to him got it:
This would be struck as an unconstitutional condition.
— Dreams (@DreamsOfTaos) July 29, 2023
In fact, we think the decision would be unanimous, because it would be about protecting the Supreme Court as an institution. Meanwhile, someone noticed how dangerous this idea truly was, if it would actually work:
If Congress could do that, it could attach the same condition to the outcome of any decision.
— Dell Adams (@DellAdams) July 29, 2023
Seriously, imagine if Congress passed a law that said prohibited any person from criticizing the current president and then said that if any federal judge voted to strike it down, including the members of the Supreme Court, all funding for that court's staff will immediately be reduced to zero, and the relevant judges will be evicted from the courthouse. Further imagine you have committed this ‘crime’ and you are standing in front of a judge, hoping that he or she will recognize that this law is as unconstitutional as they come, and set you free. How would you feel about this ‘bribe’ in the law designed to keep you in prison for engaging in free speech? Would you feel you are getting a fair hearing? Or would you feel like the fix is in?
Indeed, we are reminded of a provision tucked into the Fugitive Slave Act of 1850. That law was an unconstitutional nightmare. There are many problems with that law. First, if you read the Constitution as it existed in 1850, there was nothing in the Constitution that gave Congress the power to catch slaves. Second, it allowed for ordinary citizens to be conscripted into the capture of slaves against their will.
But we will focus on the third problem: The law included a bribe. You see, it created a new set of non-Article III judges (judges not created under Article III of the Constitution) who would determine whether or not an accused slave was a free person or not, called Commissioners. At the hearing, the accused slave had no right to speak or to be represented, and the only evidence required was an affidavit—basically a written piece of paper saying ‘I swear he is totally my slave. And I’m not just lying because I could use an extra slave on my plantation.’ And the final insult was that the commissioner was paid by the decision: Ten dollars if the person was declared a slave, but only five dollars if he or she was declared free.
And folks that is about as clear a violation of the Due Process Clause (of the Fifth Amendment) one could imagine. There is a lot of debate about what constitutes a fair trial as required by the Due Process Clause, but having a judge not openly being bribed seems like a bare minimum.
And we keep hearing that the Democrats have changed greatly since the days of slavery and Jim Crow. And yet, here is Ian trying to use almost the exact same tactics once used to lock free black people up as alleged slaves. Of course, you can’t alter the actual pay of a Supreme Court Justice under the Constitution, but they are out to do the next best thing.
The problem with an ethical code is that the code also would have independent actors telling the justices what they can and cannot do and even potentially disciplining justices for disobedience. Indeed, it would require justices to spend time away from the work of actually deciding cases in order to address ethics complaints. As it is, there are many more cases that deserve consideration each year than the Supreme Court has time to address. This creates the possibility that false and bad faith complaints could be used as a tactic to hamstring the Supreme Court.
Now, one thing Congress does have the power to do is impeach any federal judge. This is what it means when the Constitution says ‘The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.’ That is read as coded language allowing Congress to impeach and remove any federal judge or justice who does not engage in good behavior—and it is fair to note that this language is broader than the provisions allowing for the President to be impeached and removed. So, Congress could promulgate an ethics code as a resolution and say, in essence, ‘this is what good behavior is, and breaching it is bad behavior.’ But even then, an impeaching House and a trying Senate wouldn’t be bound to that interpretation in deciding the issue of impeachment. In any case, that isn’t what the proposals are. The proposals is to make a body that constantly tells the Supreme Court justices what to do, which is a violation of separation of powers.
‘But,’ you might ask, ‘don’t we already impose an ethical code on the lower court?’ Well, you brilliant figment of our imagination, that is the significance of Alito’s comment that ‘Congress did not create the Supreme Court.’ The Constitution creates it by saying:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Therefore, because the Supreme Court is not created by Congress, Congress has no power to regulate it in that fashion.
We even saw one person try to debate that point:
As to the merits of Justice Alito’s assertion, this language in Article III, Section 2 is not the only provision of the constitution that gives Congress the power to regulate the Supreme Court, but it is sufficient to show he is wrong. pic.twitter.com/ksp253NPRT
— southpaw (@nycsouthpaw) July 28, 2023
To be blunt, that section being quoted is only referring to the regulation of the Supreme Court’s jurisdiction, not to the Supreme Court itself. Let’s quote that part of the Constitution in any easy-to-read format. But before we do, here’s a key thing you need to understand. When we talk about ‘original jurisdiction’ that means essentially ‘trial court jurisdiction.’ With that in mind, here’s the constitutional provision in question:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Thus, in the first sentence, they are talking about when the Supreme Court has to act as a trial court. Yes, occasionally the Supreme Court has to actually hear a case as if they are an ordinary court with evidence and witnesses and all that (although they typically farm that out to a special master they supervise). But in appellate jurisdiction, they don’t take in new evidence except under truly extraordinary circumstances and, instead, review the lower courts to see if they made errors. So, in context, the Constitution is talking about regulations of the Supreme Court's appellate jurisdiction and not regulations of the Supreme Court itself.
And it is worth noting that even that regulatory power is not unlimited. After the Civil War, Congress tried to prevent the Supreme Court from hearing a number of cases related to the war, because they were afraid they might rule in favor of Confederates. The Supreme Court eventually struck down those limitations because changing jurisdiction so the Supreme Court can’t hear a case because Congress is afraid they will rule a certain way is a violation of due process.
Ian also had another complaint about Alito’s statement:
This is hardly the worst thing about Sammy Alito. But, for the record, Article III judges are not supposed to issue advisory opinions on constitutional questions that are not presented to them in case or controversy that their Court properly has jurisdiction over. https://t.co/67sewbOxcZ
— Ian Millhiser (@imillhiser) July 28, 2023
Except the term ‘advisory opinion’ refers to official rulings. If Alito said to some person on the street, ‘gosh, I think Starbucks makes the best coffee’ that’s an opinion he is offering just like any American can do, but it is not a judicial opinion. Honestly, we are not sure if Ian is just being stupid, or if he is treating his followers as though they were stupid.
Still, most of the time Supreme Court justices do not offer their opinions on legal subjects in such a way that suggests how they would rule. But it is known to happen. For instance, Justice Breyer once said that there was no right to burn a Koran while on a book tour. Sometimes, justices offer such opinions in such a definitive way that they feel the need to recuse themselves if the issue actually comes up, but we don’t even think that applies on this issue (whether Congress can impose an ethical code on the Supreme Court). Why? Because there's an exception that applies.
You see, recusal should occur whenever a reasonable person, apprised of all of the facts, would think the judge or justice would be biased. And the problem here is by that standard all of them would have to recuse themselves. Every single Supreme Court justice would have a direct stake in the outcome, both personally and institutionally. And that is one of the exceptions for recusal: When the recusal rule would require everyone to step aside, then no one steps aside. After all, if the entire Supreme Court can’t hear the case, there’s no one else to hear it.
Sadly, Ian didn’t have many voices of reason pushing back:
Couldn’t they legitimately exclude it from judicial review?
— Matthew of Philadelphia (@Miltime8) July 28, 2023
No.
I think those things should be discussed now. and no budget approved until Roberts deigns to appear before congress as they requested
— Jennifer landon (@Jlan410) July 29, 2023
Even simpler: Congress could impose a code of ethics by statute, then strip the federal courts of jurisdiction to review that statute.
— Shuan Rose🇯🇲🌎🇺🇸 (@shmr50) July 29, 2023
Yes, it's that simple. *rolls eyes*
Finally people are willing to point out that the Supreme Court Building belongs to us not them and if they won’t behave like judges, they can conduct their illegal and extra-constitutional political crusade from Harlan Crow’s Schickelgruber Memorabilia Museum. https://t.co/4LaUQbUhkW
— TheMassachusettsSpy (@stevena472) July 28, 2023
But he also got dragged:
Maybe you don’t understand or care for the separation of powers.
— Soxaholic (@MikeBrennan330) July 28, 2023
Why not just burn SCOTUS down, like they did the Reichstag? Instead of Communists, you can blame it on MAGA, like Jussie Smollett. Progressives would believe it, just like Germans did!
One easy way congress could have prevented integration of public schools would have been to pass a law saying that if the court even thought about requiring integration all funding would immediately go to zero. This isn’t a clever argument, it works for anything. https://t.co/HTFov2DOFh
— GSU (@GsuGrinding) July 28, 2023
Except Biden won't do this and if this trick is ever used, it will be by a GOP president to commit a self-coup. https://t.co/pDyD5cLTYS
— Global Intel Watch (@GIntelWatch) July 28, 2023
Well, he is engaging in the important mental experiment of ‘let’s imagine if the principle was used by the worst actor I can imagine.’ Mind you, we are not calling the Republicans bad actors, but we have little doubt that this Tweeter thinks they are. And this is an excellent tactic to employ when arguing against leftists. Indeed, since they think Trump is something like the devil say to them ‘imagine what Trump would do with this?’ It might make them hesitate in their desire to erode the protections of liberty.
It's at least worth a try.
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