Justice Samuel A. Alito Jr. said that Congress doesn’t have the authority to impose ethics rules on the high court, defending himself and his colleagues as they’ve been under scrutiny from liberal lawmakers and activists for conflict of interest allegations in recent months.
His remarks make him the first justice to publicly push back against Democrats, who have prompted legislation to impose a code of ethics on the Supreme Court.
Justice Alito said there doesn’t appear to be defense from the bar, so he has to speak out — and that he follows guidelines lower courts do for ethics rules.
“Congress did not create the Supreme Court,” he told the Wall Street Journal Opinion writers in an interview published Friday. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
The interview took place in early July and just last week the Senate Judiciary Committee passed legislation that would require the court to adopt a code of ethics, create a way to probe alleged misconduct and improve transparency and explanations for recusals and connections justices share with parties that may have cases before the court.
The vote was along party lines, 11-10, with Democrats using their slight majority to muscle it through.
The legislation is “as dead as fried chicken,” according to Sen. John Kennedy, Louisiana Republican, who noted it won’t receive the necessary 60 votes in the Senate to pass or even be taken up in the GOP-controlled House.
Republicans have argued the move was a politically motivated attack from the left on the court, and an attempt from liberals to delegitimize the court, which has a 6-3 conservative majority.
The push for ethics legislation by Democrats comes after news reports detailing social and business relationships between the justices and a variety of benefactors.
Last month, Justice Alito, who joined the court in 2006, beat ProPublica to the punch, publishing an op-ed in The Wall Street Journal rebutting a then-unpublished article accusing him of ethics violations. The justice, a President George W. Bush appointee, accused the outlet of misleading readers in an article about his ties to Paul Singer, a billionaire hedge-fund manager.
“ProPublica has leveled two charges against me: first, that I should have recused in matters in which an entity connected with Paul Singer was a party and, second, that I was obligated to list certain items as gifts on my 2008 Financial Disclose Report. Neither charge is valid,” Justice Alito wrote, regarding allegations he took a vacation at the expense of Mr. Singer who had matters before the bench.
The op-ed followed a series of reports from ProPublica about Justice Thomas, the longest-serving member on the bench appointed by the late President George H.W. Bush.
ProPublica reported that Harlan Crow, a GOP megadonor, paid private school tuition at Hidden Lake Academy and Randolph-Macon Academy for Justice Thomas’ great-nephew, whom the justice took in to raise at the age of 6.
The tuition total could have cost more than $150,000, according to ProPublica. Justice Thomas did not disclose the payments in his financial disclosure forms, and the news outlet suggested that runs afoul of ethical standards required of a federal judge.
ProPublica also reported in April that Justice Thomas did not disclose that he had taken multiple luxury vacations with Mr. Crow or that Mr. Crow had purchased his mother’s home even though she continued to reside there.
The Washington Post followed with an April 16 article examining what appeared to be a typo on the justice’s financial disclosure related to family real estate holdings in which he reported rental income to Ginger Ltd. Partnership instead of Ginger Holdings LLC.
The New York Times followed with a piece critical of Justice Thomas and other Republican appointees collecting generous salaries to teach courses at George Mason University’s Antonin Scalia School of Law.
Justice Thomas has defended his friendship with Mr. Crow, and said he consulted with colleagues about disclosure requirements and didn’t skirt any rules.
In response to Democrats’ concerns about ethics, Chief Justice John Roberts said the high court has generally followed the Judicial Conferences’ Code of Ethics that are binding on lower courts — but not the Supreme Court — since 1991.
He said all justices must file disclosures that are reviewed by the Judicial Conference Committee on Financial Disclosure and follow what lower courts do with recusals. But he noted that the system is flexible, given the composition of the high court.
He also said the justices have faced increased threats. He said they sometimes do not disclose justices’ travel arrangements for security reasons.
Chief Justice Roberts refused to testify before the lawmakers about their ethics concerns.
But he has spoken out in the past about questions surrounding Congress’ ability to police the Supreme Court.
“The Court has never addressed whether Congress may impose those requirements on the Supreme Court,” Chief Justice Roberts wrote in a 2011 end-of-year report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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