Said Justice Alito, quoted in "Congressional Dems pile on Alito after he says SCOTUS ethics can’t be regulated/Democrats — especially progressives — have increasingly expressed more anger at the high court in recent years" (Politico).
The anger is, as Politico puts it, expressed "on X" — in other words on Twitter. We're supposed to say "on X" now? I view that as illegitimate and will disregard it.
What's the relationship between those 2 sentences of Alito's?
I get the first sentence. It's the simple point that the third branch of government is separate from the other branches except when particular checks and balances are provided for. It would violate separation of powers for Congress to impose a code of ethics on the Court. Let them stick to voting not to confirm nominees who lack good ethics and just impeach and remove Justices who don't measure up to Congress's idea of proper ethics.
But does the second sentence mean that if there were a code of ethics imposed by Congress, then violations of that code would cause people to view the Court as illegitimate, and then it might become acceptable and popular to flout the Court's decisions, which would undermine the rule of law? Or does that second sentence mean there can be no code of ethics, but there's a check on the Court in that the Justices know that if they are unethical, they will be viewed as illegitimate, in which case it would become acceptable and popular to disregard the Court's decisions, and the Justices, aware of this threat, feel pressure to adhere to ethical behavior?
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67 comments:
"We're supposed to say "on X" now? I view that as illegitimate and will disregard it". Perhaps the most childish statement I've ever read from Althouse.
I agree with Alito. And why do we need this now? We haven't had it for 230 years. So why NOW?
The answer is: We don't need it. The D's just don't have the power to do what they want. They don't have the votes to pack the court with new justices ala FDR, or impeach a justice.
I assume the any justices who violated the "ethics law" Could then be prosecuted by the DoJ and punished by fines or a witholding of salary. Or jail time? Again, we'd end up with Biden's Leftwing DoJ deciding which Justice should be prosecuted and which ones weren't. And then if there was a "trial" it would be before a leftwing DC Jury.
Or a supposed "nonpartisan commission" might be used, which would be anything but.
"Let them stick to voting not to confirm nominees who lack good ethics and just impeach and remove Justices who don't measure up to Congress's idea of proper ethics."
Absolutely. But we don't live in that world anymore. For progressives, procedure, common law and custom are barriers to getting their way.
Take the 2nd amendment for example or the recent Dobbs fiasco. If they don't like guns and want them banned entirely or they want abortion completely legal at the national level there's a way to do that specified in the constitution. But the way to repeal the 2nd amendment or add a new amendment legalizing at-will abortion is difficult, extremely difficult, maybe even impossible, and that dog won't hunt for them monsignor no siree.
For them what cannot be accomplished according to the law must be accomplished either by end-runs around constitutional procedure or through harassment, intimidation, or ignoring decisions they don't like outright. Calling the ethical integrity of the court into question is small potatoes. Look at what Kathy Hochul has done in NY with recent anti-gun decisions by the courts of appeals and SCOTUS, they just repackage the same law that got shot down so they can tie up plaintiffs in never-ending lawfare to get their unconstitutional way in things. SCOTUS shoots it down, they repackage the law and get it passed again...process starts over.
It never ends. They cannot act in good faith. They are agreement incapable and must always take action to impose those things they think are good on an American people that clearly do not want it. They will falsify data and polling to create the impression their suggestions are desired when they are not.
They are liars. They are not Americans. The founders would've had these people swinging from sour apple trees.
It's insanely simple. Leftists believe that any SC ruling or action they agree with is good, any they don't should be ignored and the justices who supported it should be impeached.
Picture in your mind a screaming four-year-old in the checkout line ahead of you, whose parent won't buy her the candy bar she wants. That's a progressive (the kid, not the parent).
I think Justice Alito is correct in both sentences. Congress has little power over the Supreme Court (other federal courts aside). Attacks on the Supreme Court should lead to lessening respect for the Supreme Court and its decisions. However, that is nothing new in our political history. The Supreme Court has been attacked many times for its decisions from all sides - the Warren court for one and FDR's attacks for another. I am not sure whether the current vitriol thrown about is much different in amount or intensity than was done in the past.
Maybe Alito is just saying they’ll make shit up like they did to Trump?
He’s suggesting they should knock it off by reasoning. Trouble is while they still exhibit certain limitations they aren’t reasonable.
First of all, his junta is regarded as illegitimate because it represents a theocratic takeover of a secular court thanks to two stolen nominations by the equally unpopular partisan faction supporting it. The court’s abysmal poll numbers and his need to go on a victory lap speaking tour event in Rome prove that.
Second, if checks and balances are a one-way thing then America is finished. (Which any good theocrat like Alito would welcome, anyway). He doesn’t want judicial independence or autonomy so much as judicial supremacy,
Third, tanks, seat belts and electrical transforming stations aren’t mentioned in the Constitution either and yet are somehow perfectly legal to regulate.
This guy is a ninny and a buffoon who should be removed from the bench yesterday. His nonsensical assertions might win points coming from a student sucking up to the clerical power structure running a parochial school or madrasa but are patently garbage to anyone who respects the American tradition. He makes a mockery of all the decent Catholics in America from those attacked by the Know-Nothings to JFK who respected the difference between the kind of government established in this country and some other version running parts of Europe in the 15th century.
The Democrats, under the Biden Administration, want to lecture the Supreme Court on the subject of ethics, and its rightful place under the auspices of Good Government, with the rest of the country as an audience. Now that's rich - in all senses of the word.
Alito has both sentences perfectly distilled, and then blended them like a good malt.
Alito’s claim that no provision of the Constitution allows Congress to regulate the Court is plainly incorrect.
Art. III, section 2: “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.“ Could Congress provide appellate jurisdiction (which is, by far, the Court’s most significant form of jurisdiction), subject to an Ethics Code? Sure. Perhaps it could not apply to the Court’s original jurisdiction, but the greater of power to remove seats from the Court ( Toni g requires nine seats) suggests the lesser power of imposing an ethics code.
Moreover, how does Alito square federal statutes that apply to the Justices? 28 U.S.C. § 455 applied to the Justices and provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Is that also unconstitutional? Is not, why not?
The necessary and proper clause of Article I of the Constitution gives Congress the power
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
As the judicial power is granted to the courts by Article III, that clearly falls into the category “all other Powers vested by this Constitution.”
Hpudding, you speak with religious conviction. You should start a new crusade, you're clearly on a mission from god...whoever that is.
He's referring to two different matters. It's clearer in the WSJ article.
The inability of Congress to impose a code of ethics is the first matter and the disrespect and open resistance by the Executive branch and those who encourage that resistance is the second.
He is not suggesting a direct relationship between the possibility of Congressional imposition of an ethics code and disrespect and resistance by the Executive.
rcocean said...
I agree with Alito. And why do we need this now? We haven't had it for 230 years. So why NOW?
For MOST of my life; there has been an activist, left-leaning, living constitution SCOTUS..
And, Leftists kept saying: Too Damn Bad! LIVE WITH IT!!
NOW, the court Is NOT an activist, left-leaning, living constitution SCOTUS..
And leftists are freaking out. What's next?
leftists reminding the judges that they are ONLY judges.. For Life?
Alito exaggerates a little bit. No provision in the Constitution? Congress can control the jurisdiction of the federal supreme and inferior courts; it has the power of the purse as to the SC's budget; it has varied the number of justices on the SC and it can expand or decrease the number of inferior courts. Congress can also impeach federal judges.
It's insanely simple. Leftists believe that any SC ruling or action they agree with is good, any they don't should be ignored and the justices who supported it should be impeached.
This comment when the AL state legislature, just yesterday, basically told the SC court to fuck off.
Blogger hpudding said...
First of all, his junta is regarded as illegitimate because it represents a theocratic takeover of a secular court thanks to two stolen nominations by the equally unpopular partisan faction supporting it. The court’s abysmal poll numbers and his need to go on a victory lap speaking tour event in Rome prove that.
Puddinghead is a little too harsh on Biden. Yes, I know he is illegitimate and Biden's poll numbers are abysmal but he is trying as much as his Alzheimer's permits.
Quoting my statement about how Leonard Leo conspired with McConnell and Trump to steal two SCOTUS seats only reinforces the point and makes you look even dumber than usual, Ivermectin Man.
And tell me again why a newly bearded Alito chose Rome as the venue for addressing his decision to allow Vatican-approved OB/GYN practices in any state willing to impose them on all its women, including ten-year olds who were raped into carrying a forced pregnancy. (To term, if a right-wing governor had his way).
Even Ireland figured out that that was a bunch of BS. After it killed an Indian dentist living there (Savita Halappanavar) by imposing a septic abortion (i.e. incomplete miscarriage) on her.
I guess the god of the Alito (and whomever he reports to) and Ivermectin Man find these to be very ethical and sensible regimes under which to live and force others to live.
Althouse fails to mention that Alito gave this interview to an attorney who is litigating a significant case before the Supreme Court. Alito is either totally tone deaf or just doesn't give a dam.
What happened to the old idea that a judge should avoid even the appearance of bias?
"We're supposed to say "on X" now? I view that as illegitimate and will disregard it". Perhaps the most childish statement I've ever read from Althouse.
You must be new here...
"We're supposed to say "on X" now? I view that as illegitimate and will disregard it."
It will always be Lew Alcinder in the Althouse home.
What happened to the old idea that a judge should avoid even the appearance of bias?
I don't know. Why don't we ask Sotomayor and her publisher if they know.
Besides you guys are already going to accuse Alito of bias long after he ceases to have a pulse. It's reflexive for you.
By the way, I disagree with Alito in this case. I agree that the necessary and proper clause would allow Congress to impose a code of ethics on the Supreme Court. The problem for Congress is that ever since the con job of Marbury V Madison, the Supreme Court gets to decide what is necessary and proper.
I also think it's a bad idea.
What happened to the old idea that a judge should avoid even the appearance of bias?
You mean like when Kagan ruled on a case (ACA) she previously argued as Obama's Solicitor General? That kind of bias?
The function of the Supreme Court is laid out in the Constitution.
Congress created the lower courts and can limit what the courts can review. Indeed it could entirely abolish the lower federal courts if it wanted to however unlikely that is. Presumably Congress can overturn any Supreme Court decision if it wanted to however unlikely that is. What Congress can't do is imposing what Left wants to do to the Supreme Court.
Ethics imposed by Congress would retain its flavor. It's the separation of piles of shit, not power, that needs to be observed.
Presumably Congress can overturn any Supreme Court decision if it wanted to however unlikely that is.
Well, yes and no. For instance, they couldn't throw out the Dred Scott decision, but they could pass the 13th Amendment overruling it. It all goes back to the con job called Marbury V Madison.
The Supreme Court has ULTIMATE power in our society (so far). They can rule that anything either the Executive does or the Legislative does is unconstitutional and stop them.
That's why Republicans focus on ensuring THEY are employing the Supreme Court and its why there is a 6-3 majority Republican Supreme Court now.
But that's only "so far." What happens when Democrats decide they don't like the Supreme Court any more and the Democrats control EVERY. OTHER. INSTITUTION. Including the military and FBI and CIA?
Well, what happens is the same thing that happens to all Supreme Courts when one ruling junta decides that the courts are inconvenient.
The justices are murdered.
And that is exactly what is going to happen to Alito and the others.
They're going to be executed. By Democrats. Legally.
Not only does the left find the craziest batshit woman in the history of SCOTUS nomination hearings to accuse a nominee of being a rapist decades after the events that didn't take place supposedly happened, it then finds a court clerk - or more likely a justice that shall go unnamed - to spill the draft of a Dobbs decision it doesn't like to influence the court. This is followed by a deranged loser's one-way flight to a sitting Justice's house with a mission to kill him.
Did I miss anything?
to spill the draft of a Dobbs decision it doesn't like
To do this day I am still shocked at Althouse's lack of outrage about this.
It's kind of fun to see the lefties freak out when the USSC finally has a conservative majority. They had many years of lefty decisions, including Harlan Black's that Johnson hadn't stolen the Texas Senate election. Abe Fortas, LBJ's lawyer, was later appointed and then had to resign from the Court.
the Justices know that if they are ethical, they will be viewed as illegitimate
Sounds about right, these days.
[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Is that also unconstitutional? Is not, why not?
Because neither the executive or legislative branch have constitutional power to adjudicate what reaches the level recusal.
Congress can can create a code of ethics, but congress lacks the power to enforce. Congress has the power to Impeach Judges, not police them. Dems are play acting to their base. Telling their voters how terrible the judges are. But in truth, They have the power to impeach, and aren't using it.
RideSpaceMountain wondered: "Did I miss anything?"
Yes, you did.
You missed the only black, female justice ever nominated to the Supreme Court that was so obscenely stupid she couldn't even define what a "woman" is, despite ostensibly being one. And they put her on the court anyway.
@Michael K
My all time favorite was the overturning of the 2008 California Prop 8. A literal voters referendum, decided by majority, overturned. Another runner up is the 2015 Obergefell v. Hodges decision.
The right argues about whether things are constitutionally protected or not. The left argues about things that don't even show up in the constitution period.
You know what's really funny? It's always gays, gay rights, gay issues, trannies, etc ad infinitum. They hate guns and they hate free speech, but God almighty do they pull out all the stops for rainbow jihad. Their entire party is shot through with queers and queer apologists and queer staffers. The entire leftist-democrat political complex is the LGBTQLMNOP and their heteromale-hating queerhag allies. Just look at how they go to the wall for them every single goddamn time.
Truth in a published piece??? I thought no one would admit in writing that Congress cannot create an Office of Inquisition to attack the SCOTUS. They just want that to discredit the Judicial,Branch so their eternally rigged elections for President can give them a Dictatorship in perpetuity. You know, like the genius ChiComs do it. …all to save us from Global overpopulation.
“We're supposed to say ‘on X’ now?”
Per Scott Adams, you can say ‘on Xitter’ (X to be pronounced as in President Xi.)
Dems are play acting to their base. Telling their voters how terrible the judges are. But in truth, They have the power to impeach, and aren't using it.
No the Democrats don't have that power. Impeachment must originate in the House. The Dems don't control the House.
Now that Alioto has clearly stated his legal position on some hypothetical law, presumably if the issue is ever before the Court in the normal way, he will recuse himself and restore public confidence in the integrity of the court.
jim5301 said...
"Now that Alioto has clearly stated his legal position on some hypothetical law, presumably if the issue is ever before the Court in the normal way, he will recuse himself and restore public confidence in the integrity of the court."
Why do you think the Supremes would ever accept a case essentially seeking to breach the Court's Constitutional role as a separate branch of government NOT controllable by Congress?
What Court would let that camel's nose under the tent?
Doncha just LUV Law prof's "analysis", which basically offers nothing but unsupported conclusions?
He cites statutes, but no case law, to support his contention they constitutionally apply to the Supremes.
Not very edifying.
Ditto the claims that the "necessary and proper" clause allows Congress essentially to do whatever the fuck it wants to control the Supreme Court.
The congress sets its own ethical rules. (They can vote to censure each other if found in violation, for example)
So does the White House. (can't campaign on WH grounds, for example)
Why can't the Supremes set their own ethical rules?
It's a naked power grab by the democrats. If the court had a liberal majority, this discussion would not be taking place.
It's the same thing with the paper ballots hand count v machine vote count. Liberal used to hate the machine count. Now that Biden has proven they can hack it, now they love the machines.
Don't know. I'm not a biologist.
Why can’t the Supremes set their own ethical rules?
Because they report to the Vatican. Another institution incapable of policing itself.
Anna. This is how the matter would reach the court. One of the justices is accused of violating the law. The justice challenges the constitutionality of the law. Given the amount importance of the issue, the Court would probably take it up. Amazingly, if the case does reach the court the accused could decide not to recuse himself.
Lem. Congress of course could decide to enact a law governing its ethical conduct. If they haven’t it is shameful. As for the Executive branch, the Hatch Act is a duly enacted law. Your examples seem not to support your position.
“We're supposed to say ‘on X’ now?”
Per Scott Adams, you can say ‘on Xitter’ (X to be pronounced as in President Xi.)
In case this is too opaque, try saying "not now honey, I'm on the Xitter" to grasp what is being intimated by Dilbert Guy. So goes life in 2023, as our future sinks slowly into the West.
Yo, pudding guy, what you're dealing doesn't smell like a pudding I'd ever take a bite of.
I'm just saying, while ending with a prepositional flourish to indicate the depth of my contempt for your stance and the logic upon which it rests.
Funny to read the Illuminati conspiracy theories of the left.
Anna. This is how the matter would reach the court. One of the justices is accused of violating the law. The justice challenges the constitutionality of the law. Given the amount importance of the issue, the Court would probably take it up. Amazingly, if the case does reach the court the accused could decide not to recuse himself.
Already happened, long ago, in perhaps the most important Supreme Court case ever, Marbury V Madison.
It’s called Separation of Powers. Congress cannot regulate the ethics of either the Supreme Court or the President, just as the Supreme Court cannot regulate the ethics of the other two branches, etc. Supreme Court Justices leave office in one of three ways: death, resignation, and Impeachment by the House, and conviction by the Senate.
Necessary and Proper doesn’t provide any help in imposing ethics of the Supreme Court, because that Clause doesn’t stand on its own but rather must be tethered to some enumerated Congressional power - such as regulating interstate Commerce. There isn’t one here.
can the procedure for making someone Justice of USSC be changed? who can change it and how?
is that = regulating SC?
Necessary and Proper doesn’t provide any help in imposing ethics of the Supreme Court, because that Clause doesn’t stand on its own but rather must be tethered to some enumerated Congressional power - such as regulating interstate Commerce.
Nope. The text of the clause reads:
The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The clause is not limited to Congressional power, enumerated or not. Rather it explicitly extends the clause to all government powers created by the Constitution.
can the procedure for making someone Justice of USSC be changed? who can change it and how?
Yes, by a Constitutional Amendment. Although theoretically the USSC could rule the amendment unconstitutional. (see California's attempt to amend their constitution to prohibit gay marriage)
Welp, we're already there.
I would truly enjoy curb stomping a few people here.
What is the connection/relationship between ethics and the law?
Politicians do some of the most unethical things, while not breaking the law. I’m pretty sure they are in no position to determine what’s ethical. The Supreme Court is charged with upholding the law. Something’s are ethical, but not legal, and others are unethical but legal, as well as the ‘usual’ combinations.
The left believes ethics trumps law, yet, ironically refuse to codify their ethics (sic).
gspencer said...
Alito exaggerates a little bit. No provision in the Constitution? Congress can control the jurisdiction of the federal supreme and inferior courts; it has the power of the purse as to the SC's budget; it has varied the number of justices on the SC and it can expand or decrease the number of inferior courts. Congress can also impeach federal judge
7/29/23, 7:01 PM
I. Other words, each branch of government has a ‘check’ on each other branch of government. It is necessarily limited. However, congress is unlikely to be able to impeach a judge for arguing a point of law, which is what the left wants to do. They want to control the judiciary based on (their) morals, or lack thereof, regardless of the law.
We have seen this recently; the left leaning judges have provided no dissenting legal opinion, just a moral one (while compelling, it has no standing as a point of law).
Remember Trump's "illegitimate" presidency? (Hillary, et al.)
Democrats corrupt everything. The Presidency. The media. The courts. Federal law enforcement. Elections. If they can't corrupt it (yet), they smear it.
I've prayed for reformation to no avail. Maybe it's time for this one. "Lord, the wicked and evil fill the world: break them to pieces. Amen." Eugene Peterson, "Faith That Matters."
Or maybe God intends the country to be Democrat effluvium.
hpudding: "The court’s abysmal poll numbers and his need to go on a victory lap speaking tour event in Rome prove that."
"Prove...?" Seriously?
"We [Democrats] choose truth over facts." Joe Biden, Iowa State Fair, August 8, 2019
"If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular." Well, the right viewed Roe v Wade and its creators as illegitimate, with the Court writing law out of emanations and penumbras, rather than leaving it to the Congress or states. Shouting about its illegitimacy meant nada, zip, zero, bupkis for 50 years. I suspect the current attempt on the left to delegitimize the Court will work the same way. All the Court has to do to remain legitimate is to keep doing its job, and ignore the media BS.
I suspect the state-level settlement of abortion law will take about 2 election cycles before the right abandons its zero tolerance abortion stance via attrition of legislators supporting that, and the left for the same reason realizes that maybe abortion limits after about the first trimester aren't all that bad.
For 50 years both sides used abortion solely as a political goad, rather than instituting any rational laws about it. Now that both sides have to legislate abortion in the states, rather than just continuously sue over it, perhaps the fundraising over abortion will be replaced by better laws than the extremes both sides promulgated up to now.
Impeach Earl Warren
Alito is completely correct - and the insane bigoted ravings - and desperate straw-clutching - in response shows it.
This is nothing more than a not very clever attempt at a power grab by upset Congresscritters, and it will rightly go nowhere.
The only thing missing from his statement IS THAT IT IS NOT IN ALL CAPS, like his handlers.
""No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period."
Of course not. Regulating the Supreme Court is the Fourth Estate's job.
“The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
“The clause is not limited to Congressional power, enumerated or not. Rather it explicitly extends the clause to all government powers created by the Constitution.”
Except that Supreme Court Justices are not “Officers” covered by that phrase, just like members of Congress are not. The Supreme Court is not a Department - those are part of the Executive branch, created by Congress. The “thereof” ties “Officers” to “Departments”, which, being part of the Executive branch, makes it only applicable to Executive Branch Officers.
Moreover, one of the foundations of our Constitutional form of government is that our Constitution grants limited, enumerated powers to Congress, the President, etc. The Constitution has power granting clauses, and power limiting clauses. If a power is not granted Congress, they don’t have it. This was reinforced by the 10th Amdt. It is not open ended. Congress does not have the power to do whatever it wants. Which means that your argument is circular - government powers are only those provided by the Constitution, and thus must not include anything that isn’t.
The biggest block to your theory (and the entire argument in favor of Congressionally mandated ethics standards on the Supreme Court), is probably found in the most famous, and most ethically challenged (John Marshall both signed the disputed commissions as Secretary of State, then authored the decision as Chief Justice, affirming them), Supreme Court case - Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Among other things, it established judicial supremacy in interpreting the Constitution and federal laws, and rejected Congress’ attempt to limit its power. It did the latter by rejecting a portion of the Judiciary Act of 1789 that purported to give the Supreme Court the power to hear the case in the first place. Imposing an ethics standard on the Supreme Court would effectively add additional requirements to being a Supreme Court Justice, which that Court is not about to allow.
Gahrie said...
I don't know. Why don't we ask Sotomayor and her publisher if they know.
Sounds good to me.
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