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Alito Piles on Reasons for Congress to Act on Supreme Court Ethics

Justice Alito’s display of flags associated with the January 6 insurrection shows that the current system isn’t working.

In the summer of 2023, Justice Samuel Alito told the Wall Street Journal that Congress has no authority to regulate the Supreme Court, despite the ethical regulations Congress already imposes on the justices. Around the time he made this erroneous statement, the justice saw fit to fly a flag in his yard that had been carried by January 6 rioters and associated with the “Stop the Steal” insurrection movement, marking the second time since January 6 that such a flag had flown outside of the justice’s residence. 

A sitting justice openly flying flags associated with the insurrection highlights the shortcomings of the Supreme Court’s recently released nonbinding code of conduct, and it underscores the critical role the Constitution envisions Congress playing to protect the public’s trust in the Court when the justices themselves fail to do so.

Alito’s behavior violates multiple canons of the ethics code the Court adopted for itself in November. At a basic level, the public display of symbols associated with an active political movement constitutes political activity, which the code explicitly forbids. His actions also call into question whether he will preside impartially over January 6 cases, as the code requires justices do “at all times.”

Perhaps even more troubling than the underlying conduct is Alito’s subsequent failure to disavow it. Since January 6, federal judges across the country have heard hundreds of criminal cases involving January 6 rioters. Alito’s failure to distance himself from these symbols threatens to legitimize a movement that presents an ongoing security risk to the justice’s colleagues in the lower federal courts — and to the rule of law in general. The judges hearing these cases have faced unprecedented waves of harassment and   violent threats against themselves and their families.. Such threats against judges for the discharge of their duties undermine an independent judiciary, which the ethics code requires justices to uphold and preserve.

When the Court released its code of conduct, we knew that it would prove unable to rein in the unethical behavior of the justices. Unlike ethics regulations that bind lower federal judges and many state supreme court justices, the code lacks a process for identifying and investigating misconduct and an enforcement mechanism to ensure that the justices actually abide by the ethical principles to which they have agreed.

Contrary to Alito’s assertion to the Wall Street Journal, there are many constitutionally permissible ways for Congress to shore up ethics at the Supreme Court. Congress could, for example, create an inspector general office tasked with investigating alleged misconduct. It could direct the U.S. Judicial Conference (the policymaking body for the federal courts) or the Supreme Court to establish a process for receiving and handling complaints about justices’ ethical misconduct. Or it could create an investigations panel composed of chief judges of the circuit courts.

As we explain in our recent article in the Hofstra Law Review, all of these enforcement mechanisms are consistent with Congress’s authority under the Constitution. While Article III of the Constitution requires that “the judicial Power of the United States . . . be vested in one Supreme Court,” it does not give the Court itself authority to wield that power by force or power of the purse.

Instead, as the Court itself has consistently acknowledged, it is the public’s trust in and collective acceptance of the Court’s authority that is the linchpin of the Court’s power. Because Congress has the authority to “make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution,” Congress may pass legislation to protect the Court from corruption risks that would undermine the public trust, and thus the court’s authority. Indeed, it is for this reason that Congress has long regulated the ethical conduct of the justices, from the first Congress requiring that the justices take a separate oath to the modern adoption of financial disclosure requirements.

To be sure, separation of powers poses some limits on what Congress is authorized to do. For example, Congress could not, under the guise of ethics, require justices appointed by presidents of one party to recuse themselves when hearing cases involving the administration of a different party’s president. But establishing investigatory and enforcement mechanisms to ensure basic compliance with the code of conduct that the justices have already agreed to abide by falls well within Congress’s authority. These reforms would neither aggrandize Congress’s power nor encroach upon the Court’s authority.

When the Supreme Court adopted its code of conduct last fall, the justices stated that they did so not to change anything about the rules that govern their conduct but to “dispel” the public “misunderstanding” that the justices “regard themselves as unrestricted by any ethics rules.” Whatever the justices believe, it is clear that the ethics rules are not working.