2y ago

Alito wasn’t bluffing: He believes the Supreme Court is above the law

thehill.com 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.

111 comments

No part of the Constitution gives the Supreme Court the power of judicial review either. The court created that power out of nothing. If you wanna get pissy, Alito.
- Or sovereign immunity, absolute immunity and qualified immunity. They're just shit the court made up.
- He seems to think he's above the Constitution. Probably thinks he's Judge Dredd.
  
  To the iso-cubes with them
  
  I don't know why but I can't picture Alito in a full suite of armour with helmet and sidegun and all... the image I have of him with such a loadout on himself is that of a frail, weak, elderly man blabbering about his authority on people's life...
  Wait, that's how I would see more or less anyone of that sort nowadays.
  Maybe American institutions nedd a bit of a refresher
- I can't tell you how happy I am to see someone point this out here.
  As if the ridiculous set of laws we have weren't bloated enough already, the nearly bottomless stack of court cases that modify them all and stack on each other make it impossible to have a fair trial.
  
  It's telling that the people who want to eliminate the Executive Departments because they don't have Constitutional authority to create laws have been silent on Judicial Review.
- And he always wants to get pissy.
- Regardless, the constitution very clearly does have language establishing that Congress can regulate the SC. Alito should be embarrassed to be spewing such baldfaced and easily disproved bullshit, but here we are
- I made the same point elsewhere in this thread... But in fairness, the Constitution gives them final judicial appeal power (pretty much word-for-word).
  It's an interestingly thin line that their judicial decision about any dispute is binding. It's clear they have judicial decision about any dispute of fact. From that, it seems obvious in retrospect that would give them final appeal power on any dispute of law as well. Ironically, that they aren't the final decisionmaker on State Law seems the oddity based upon the wording of their mandate.
  That's the point of a judiciary, sadly. If two parties disagree on something relevant, we're supposed to have a neutral arbitration about which party is correct. One party says "the Constitution does not allow abortions" and the other party says "that's not how it looks to me". Lacking congressional action, there's already relevant law one way or the other and people are disagreeing on which way the law goes. In an ideal world, a "free" country should err any ambiguity on the side of individual freedom, but even then there's a disagreement on whether a fetus could legally be seen as an individual.
  I think the problem with Marbury is that nobody saw exactly how broken the idea of having one authority to decide "who decides what is true when two parties disagree on the facts?" could extend. As the US court is a Common Law court, I wonder how much of that comes from European judicial style anyway.
  
  Wow what a stupid misunderstanding you've spent so many paragraphs elucidating on.

Dissolve the court. Arrest Alito, Thomas, Gorsuch and Kavanaugh - the crimes committed by those four are known to the public. Appoint a special investigator for each remaining justice. If they've so much as taken a stick of chewing gum from someone with business before the court imprison them too. Every one of them is delinquent in their duty to preserve the impartiality and legitimacy of the court. Every one of them has cosigned Alito's statement that the court is above regulation. Every one of them endorses this clown show where the highest court in the land is blatantly, publicly for sale. If they won't protect the legitimacy of the court we need to take steps to protect the legitimacy of the court from them. They can declare themselves immune from prosecution but no one is immune from the will of a people united in their support for real justice.
- Hey I thought we had rules against porn here
  
  I'm above the rules
- At least 59 people think this is a high quality post or more likely just agree with it.
  no one is immune from the will of a people united in their support for real justice
  How do you intend to enforce that will? While you aren't saying it outright it almost sounds like you are thinking about grabbing a red hat and storming the building.
  
  How do you intend to enforce that will.
  Frankly, I don't. That would make me a dictator. But you'll notice that history tends to have a pattern of punctuated equilibrium where things stay mostly the same for a really long time, then become very different very quickly, then stay that way for a really long time. Those decades where nothing happens tend to be associated with people forgetting that they can have whatever they want whenever they decide to get it. Then they remember that nothing works unless they do, and that turns into a few weeks where decades happen. Sometimes people just need a hand remembering that they always have and always will run the show.
  It's interesting that your first thought is violence. It's direct, and it has worked in the past, but I think that even aside from the issue of morality violence is becoming less and less effective as states are more prepared for it. What I would propose if I had the power to make this decision is literally nothing. I think we should all sit on our hands and do absolutely nothing for a couple days. Coordinate with one another so that we can make sure no one goes hungry while we do nothing, and so that we can accurately convey to the master class what it would take from them to get us back to doing something. Then we wait, and I don't suspect it would take very long. In fact, I honestly believe that if a majority of us did nothing on Monday that we would all have whatever we wanted by Friday. Much more complex to implement than violence, it requires a lot more coordination and cooperation, but I think that it's both morally superior and more effective if you can pull it off. It's easy to defeat violence. All you need is superior violence and the state is really good at violence. They could pretty handily stimy violent revolution. But a flat refusal to participate in any manner is a lot harder to deal with.
  
  Why are you acting like the only possibility of removing Alito would be an insurrection?

Add more justices to the court. Then Alito's opinion will not matter so much.
- The Judiciary Act of 1869 sets the size of the Supreme Court at 9. Congress would have to pass a law to make that happen.
  In order:
  The Republican controlled House won't vote for it.
  Republicans in the Senate would filibuster it.
  Democrats in the Senate will never get rid of the filibuster because they love their procedural excuse for breaking campaign promises.
  
  Yes but according to Alito, Congress has no power over the supreme court so that act is moot and anyone can just make up a number.

I'm going to say n- and r-words here. National referendum.
- Wheew. I thought you were going to say National Razor.
  
  I'm against killing people
- Congress will never agree to give up anymore power than the other branches already take.
  Short of a Constitutional Convention we will never see this passed. Unfortunately, a Constitutional Convention is a dangerous game even when we are less divided as a nation. The last one produced a new constitution instead of edits to the old one.
  Could you imagine what a constitution would like like if it was written by the current bunch of goobers running the country?

Sounds like Alito is having a mental break with reality and needs round the clock psychiatric care to ensure his safety. Clearly unfit to sit on any court.

The Supreme Court should be elected by popular vote and have to be reconfirmed by the states every four years.
- One national election every four years is enough for me. I can't even imagine what the campaigns for judges with the power to rewrite the Constitution through creative interpretation would look like, but if they can put Trump in the White House, they could put him on the Supreme Court.
  Term limits. Active oversight. Maybe go back to requiring 60+ votes to confirm so the GOP can't shove the Federalist Society hack-of-the-day through with a simple majority.
  
  The problem with requiring 60 plus votes is that it's would be open season for the GOP to prevent nominations, then the second they had the Senate again, they'd remove the rule. Just like they did the last time.
  
  Offset by two years from the Presidential election.
  
  Yeah, I think four years might be too short for this. Maybe eight? Idk though. The period doesn't really matter. There just needs to be something done.
- No. Judges should not be political. I don’t know the answer here, but being an elected official isn’t the right course.
  
  Yeah, if anything their selection needs to be further removed from the political process.
  
  It's always going to be political, they just pretend to be above it.
  
  Judges should not be political
  Judges are already absolutely political. Judges get appointed based on whether they'll support the policy agenda of the person appointing them. Being said, I'm with you inasmuch as giving the people who made Donald Trump president the power to pick the supreme court all by themselves is a bad fucking idea.
  
  Judges should not be political.
  Good thing they're not political now then, right?
  
  It is political. Whether they should be or not doesn't really matter.
  
  Judges have always been political
- That's how you get Trump on the Supreme Court. Elected justices is not great.
  My solution is ~16 year terms spaced out like Senate terms, where if the person dies or retires the appointment just fills out their term, and each presidential term gets an appointment or two. Removes the benefit of appointing someone young so we can have more experience on the court.
  
  My country solved the problem by having 9 years non renewable terms and requiring a 2/3 majority in the parliament to elect a judge. This avoids them thinking they are the state and prevents any hyper partisan hack from entering the court. Of course this is only possible because none of the major parties is trying to make the state implode but it works well.
  
  9 justices 18 year terms. Staggered so that every 2 year election cycle 1 justice is up for election by popular vote. Required to be member of Bar in at least one state.
  
  You can get Trump now, that isn't any different.
- Terms limited to the number of Justices. Staggered so every year 1 Justice is retired and replaced. Maximum term of 20 years (just in case Congress gets antsy and provides funding for more chairs.)

Remember, the supreme court thinks regulation means well armed.

Congress gives a major check on the Supreme Court: they’re the only branch without access to the military. They can make their decisions, and they can attempt to enforce them. But they oughta remember that they’re the ones with no sway on enforcement
- That's what SCOTUS seems to miss. Their entire power comes from the belief in their authority. If Congress or the Executive Branch chose to ignore their ruling, they can't do anything.
  The danger with the Supreme Court was never that they would make awful rulings that we'd follow. It was that they would make rulings so awful that we'd have little choice but to reject their authority, creating a system without the checks of the court.

I see more and more crazy stuff happening in the US. Will there be any actual change or are we just going to see more crazy?
- Don't let the media portrayal of the current times affect you reality. Most of the stuff going on now has been going on forever and will continue to go on forever.
  Take the faithless electors. There have been a total of 58 elections in which 165 electors have not cast their vote as the state prescribed. This first Wikipedia quotes was in 1835
  https://en.m.wikipedia.org/wiki/Faithless_elector

Abolish the Supreme Court.

Why would he ever bluff? He holds all the cards!

Alito out.

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!

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

I mean, he's not wrong, he's just being an asshole about it. :)
The Constitution gives two controls on the Supreme Court:
Nominees are made by the Executive branch and confirmed by the Senate.
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.
- 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.
- 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.
- 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.

That's not really surprising. SCOTUS was designed to be out of reach of the Legislative and Executive branches of government. That's an 8th grade civics level of understanding. If Congress doesn't like it they can impeach.
- Uhh...
  ...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.
  Article III of the US Constitution would like to have a word with your 8th-grade civics teacher.
- It's part of the system of checks and balances. The three branches of government were designed to keep each other in check. It's not working so well in practice, but that's the intention.
  
  Coequal branches of government, that's well below an 8th grade civics understanding. Crazy that people genuinely believe the Supreme Court is untouchable by congress and the executive, who do they think appoints them?
- Yes, an 8th grade civics understanding is clear that SCOTUS is an independent branch. But an 8th grade civics understanding should cover checks and balances too. And impeachment is not the only one.
  
  The other ones rely on funding and appointments and lower court mechanics.
- I mean, if you want get into it, the concept of Judicial Review is something the supreme Court made up for itself in 1803.
- SCOTUS should only be subject to dark money and billionaire "philanthropists".
- Sadly the world is not as simple as we're taught in 8th grade. Trying to apply a child like understanding of almost anything in the world doesn't really give a great understanding of the concept.
  It's the same issue with people talking about "basic biology" as if it means anything. They'll say their grade school education about sex being male or female is accurate, but in reality it's much more broad then that without even including gender identity.
  Anyone making an appeal to a basic understanding of any concept should be instantly dismissed. If there's anything to support it, it doesn't need an appeal to simplicity.
- So then the law that capped SC at 9 people was illegal and void?
  
  No obviously not. And if Congress wanted to pack the court in response to Alitos behavior they'd have that right. But they don't have the right to review his behavior.

111 comments