Democrats Target Justice After He Says Congress Has ‘No Authority’ Over Supreme Court

Associate Supreme Court Justice Samuel Alito poses for the official photo at the Supreme Court in Washington on Oct. 7, 2022. (Olivier Douliery/AFP via Getty Images)

Democrats in Congress pushed back on Justice Samuel Alito after he stated that Congress has “no authority” to regulate the Supreme Court under the Constitution.

“I know this is a controversial view, but I’m willing to say it,” Mr. Alito told The Wall Street Journal late last week. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”

Justice Alito added that Congress “did not create the Supreme Court,” coming weeks after the Senate Judiciary Committee voted along party lines to approve a bill that would mandate an ethical code for the top U.S. court.

“I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say,” Mr. Alito told the Journal. “But I think it is something we have all thought about.”

The Constitution allows Congress to shape and structure lower federal courts. It can also limit the cases the U.S. Supreme Court can hear on appeal by stripping federal courts of their jurisdiction over certain matters, according to Congress’s website.

According to its website, “The Constitution provides for the existence of a Supreme Court, but leaves to Congress the decision whether to establish inferior federal courts.”

One part of the Constitution says that 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.” Some have interpreted that clause as meaning that Congress does have some ability to regulate the high court in some way.

With his remarks, Justice Alito is now likely to face more criticism from Democrats and increased scrutiny from corporate and left-wing news outlets, which have repeatedly targeted Justices Alito and Clarence Thomas—both appointed by Republican presidents—in recent months. Notably, Justice Alito wrote the landmark decision that overturned Roe v. Wade last year, returning the decision on whether to regulate abortions or not to the states.

Justice Thomas has faced scrutiny after it was reported that he was allegedly gifted trips from Billionaire Harlan Crow. Justice Thomas has said he wasn’t aware that he had to disclose those trips, while the billionaire called the reporting a “political hit job” designed to put pressure on the Supreme Court.

Justices of the U.S. Supreme Court pose for their official photo at the Supreme Court in Washington on Oct. 7, 2022. (Front L–R) Justices Sonia Sotomayor and Clarence Thomas, Chief Justice John Roberts, Justices Samuel Alito and Justice Elena Kagan. (Back L–R) Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. (Olivier Douliery/AFP via Getty Images)

In contrast to Democrats’ claims, Republicans have criticized the effort as a bid to either reduce the power of the Supreme Court, which currently has six justices appointed by Republican presidents. Because the GOP controls the House, it’s unlikely that Democrat senators’ efforts to force an ethics bill on the Supreme Court will see the light of day.

During the early part of President Joe Biden’s administration, some Democrats floated the idea of expanding the Supreme Court with extra justices—also known as packing—which would allow Mr. Biden to appoint more judges to the high court and tilt the institution in favor of Democrats’ agenda.

Democrats Respond

Before Mr. Alito’s comments were published, Sen. Sheldon Whitehouse (D-R.I.) said last week at a committee hearing that the Supreme 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.

“Please let’s not pretend Congress can’t make amendments to laws Congress has passed or oversee agencies Congress has created,” he added. “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,” the senator said.

After Mr. Alito’s comments were made, Rep. Ted Lieu (D-Calif.) went on Twitter, also known as X, to say that Congress has some oversight over the court.

“Dear Justice Alito: You’re on the Supreme Court in part because Congress expanded the Court to 9 Justices,” he wrote. “Congress can impeach Justices and can in many cases strip the Court of jurisdiction. Congress has always regulated you and will continue to do so. You are not above the law.”

What Did Chief Justice Say?

However Chief Justice John Roberts has previously said that he doubts Congress has the capacity to regulate the high court and its justices.

In 2011, Justice Roberts, an appointee of former President George W. Bush, wrote that “as in the case of financial reporting and gift requirements, the limits of Congress’s power to require recusal have never been tested.” He also made reference to ethics principles that were endorsed by all nine justices at the time, including ones appointed by Democratic presidential administrations.

Justice Alito’s comments to the Journal come as he temporarily blocked a lower court’s decision to strike down a regulation targeting privately made firearms known as “ghost guns” as the Supreme Court weighs a request from the Biden administration to reinstate the rule.