this post was submitted on 18 Sep 2023
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Supreme Court Justice Samuel Alito no doubt intended to shock the political world when he told interviewers for the Wall Street Journal that “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.”

Many observers dismissed his comment out of hand, noting the express language in Article III, establishing the court’s jurisdiction under “such regulations as the Congress shall make.”

But Alito wasn’t bluffing. His recently issued statement, declining to recuse himself in a controversial case, was issued without a single citation or reference to the controlling federal statute. Nor did he mention or adhere to the test for recusal that other justices have acknowledged in similar circumstances. It was as though he declared himself above the law.

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[–] autotldr@lemmings.world 6 points 1 year ago

This is the best summary I could come up with:


Durbin detailed the ethics problems raised by Alito’s two-part interview in the Wall Street Journal, which was conducted by journalist James Taranto and David Rivkin, a practicing lawyer.

Rivkin happens to be counsel of record in Moore v. United States, a major case that was pending in the Supreme Court at the time of the interview and is now set for argument, which may determine the federal government’s authority ever to impose a tax on “unrealized gains” or wealth.

The actual law, in Scalia’s words, requires Alito to determine whether a “reasonable observer who is informed of all the surrounding facts and circumstance” would doubt his ability to exercise detached judgment, given his mid-case work with Rivkin.

The frequent recusals could easily be avoided by investing only in mutual funds (as do the other seven justices), but Alito has obviously chosen to place his personal financial choices ahead of the court’s need for participation by all nine members.

He has so far “voluntarily complied” with other federal ethics statutes, including financial disclosure requirements, but perhaps he will eventually decide there is no “sound reason” for him to keep reporting on his stock holdings.

In May, he told a meeting of the American Law Institute that “I want to assure people that I’m committed to making certain that we as a court adhere to the highest standards of conduct,” and “We are continuing to look at things we can do to give practical effect to that commitment.” At least two other justices — Elena Kagan and Brett Kavanaugh — appear to agree with the chief.


The original article contains 975 words, the summary contains 252 words. Saved 74%. I'm a bot and I'm open source!

[–] jordanlund@lemmy.one 4 points 1 year ago (8 children)

I mean, he's not wrong, he's just being an asshole about it. :)

The Constitution gives two controls on the Supreme Court:

  1. Nominees are made by the Executive branch and confirmed by the Senate.

  2. Impeachment.

That's it. There's nothing else in the Constitution about judicial ethics, or recusals, or anything else.

There isn't even really a control on bad or unpopular decisions by the court. It isn't like the relationship between Congress and the executive where they pass laws and the President signs or vetos them and congress can over-ride the veto power.

When the Supreme Court makes an unpopular decision, the only recourse is for Congress to pass a new Amendment.

[–] guleblanc@lemmy.world 4 points 1 year ago (1 children)

Who authorized maintenance for the big, fancy SC building? Can the Congress just decide to cut off funding? Can they eliminate pay for the justice, or for the staff? Can't the Congress add more justices? My current thought is that a 65 member SC is the perfect size. That's 5 justices for each circuit, not that circuits are terribly important as an organizing principle for the DC any more.

[–] DemBoSain@midwest.social 3 points 1 year ago

-Can they eliminate pay for the justice, or for the staff?

The Constitution states that pay for a Justice cannot be reduced.

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

-Can’t the Congress add more justices?

They've done it many times.

I can't speak to any of the myriad of laws that may affect your other questions.

[–] abraxas@sh.itjust.works 4 points 1 year ago (1 children)

In counteracting fairness, the Constitution isn't exactly clear on what power they have beyond dispute resolution. The dispute of "is this Law Unconstitutional despite seeming Constitutional?" is certainly not a question they have any clear Constitutional right to. They were given judicial power "in law and equity, arising under this Constitution, the laws of the United States, and treaties made". The right to Interpret the Constitution and Invalidate Laws sorta evolved from that.

This isn't a criticism about how things evolved. This whole "Hard to Change Constitution that lasts forever" thing isn't working out so well for us; things need to change. But it means we have a third control. "Decide that they are themselves acting Unconstitutionally and ignore them". SCOTUS has openly and willfully ruled in opposition to the Constitution before, and they will again. Sometimes it's decisions we agree with, sometimes not so much. Of course, that's probably harder to do than Impeachment. We don't know what would happen if a State openly opposed a SCOTUS decision (well, California had some passing success regarding pot legalization, and some states regarding Illegal Immigration), but if they do the Constitutional Crisis isn't that state, but Marbury v Madison.

[–] assassin_aragorn@lemmy.world 2 points 1 year ago

SCOTUS has openly and willfully ruled in opposition to the Constitution before

Their entire argument against abortion is actually explicitly condemned by the 9th amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And what is the court's argument with abortion? That there is nothing in the Constitution which enshrines it. They're directly using the enumerated rights to deny/disparage our other rights. I'm not a lawyer, but this amendment is obvious to understand. SCOTUS saying it doesn't mean what it does, does not mean it doesn't mean its plain text.

This is the fundamental problem with judicial review. It's obvious that it isn't in the Constitution, because every other act by the government has a check by the other branches. The idea that one branch can say something final without the other branches having an opportunity to overturn it is fundamentally against our notion of checks and balances. The justices can say the Constitution means the opposite of what it plainly does, and there is no recourse to stop them beyond an amendment -- but even then, what's to stop the justices from blocking that?

Judicial review is an important ability of the court and one that it needs, but it shouldn't have been unilaterally granted to the court by itself. There should have been a Constitutional amendment to explicitly enshrine it and outline the necessary checks and balances.

The Court will see reform. It's a wretched, undemocratic affront in the eyes of Millennials and Zoomers. Alito is just speeding up the process. They've made too many unpopular and tyrannical decisions in our lifetimes with no Constitutional basis.

[–] Mossheart@lemmy.ca 2 points 1 year ago (1 children)

Or pack the court with judges aligned to their interests to overturn 40 year old precedent.

[–] jordanlund@lemmy.one 2 points 1 year ago

Congress can't do that, they can only approve who the executive sends them.

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[–] CharlesDarwin@lemmy.world 4 points 1 year ago

Trollito is one angry white man, that's for sure.

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