Alito wasn’t bluffing: He believes the Supreme Court is above the law
Alito wasn’t bluffing: He believes the Supreme Court is above the law
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.
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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I mean, he's not wrong, he's just being an asshole about it. :)
The Constitution gives two controls on the Supreme Court:
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Nominees are made by the Executive branch and confirmed by the Senate.
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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.
This isn't really accurate. The Supreme Court isn't a state protected from federal government overreach. The Supreme Court is explicitly under the jurisdiction of the United States, which Congress has the sole power to create and govern except on issues which are forbidden by the Constitution (and those they give to the judiciary to control themselves).
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.
The Supreme Court is regulated by Congress except as itemized in the first sentence of this paragraph. They are also supposed to be the first and only court to see cases involving a state or other public official (ministers).
That's not what that means though.
"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."
So for ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court is the original arbiter of truth.
"In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact"
For everything else, some other body is in control and the Supreme Court serves merely as an apellate court. If you don't like how the original body has ruled, you can appeal that to the Supreme Court.
"with such exceptions, and under such regulations as the Congress shall make."
Congress is that other body, which has no say over ambassadors, other public ministers and consuls, and those in which a state shall be party, everything else Congress does can be appealed to the Supreme Court.
That paragraph doesn't give Congress control over the Supreme Court, it gives the Supreme Court appeallate power over everything Congress does.
under such regulations as the Congress shall make.”
I'm reading this the complete opposite way, that they have to abide by regulations set by Congress.
Which is why we have a Supreme Court to define what the Constitution means. ;)
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.
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.
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.
-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.
Or pack the court with judges aligned to their interests to overturn 40 year old precedent.
Congress can't do that, they can only approve who the executive sends them.
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