'Indefensible': Expert argues Alito is 'wrong on the facts' about Congress’ oversight of Supreme Court

United States Supreme Court Associate Justice Samuel Alito is "defending the indefensible" arguing that "Congress has no authority to regulate the Supreme Court" as allegations of corruption and ethics violations plague its jurists, American Enterprise Institute senior fellow Norman Ornstein explains in Monday's New Republic.

Ornstein recalls, "One involved an unreported lavish fishing trip paid for by right-wing billionaire and bare acquaintance Paul Singer, who had business before the court. The second was Alito's trip to Rome shortly after the Dobbs decision erasing Roe v. Wade, funded by an activist Notre Dame–based anti-abortion group that had filed an amicus brief in the case. When the watchdog journalistic group ProPublica contacted Alito before it published the blockbuster revelation about the fishing trip, he instead tried to preempt the story with a diatribe in The Wall Street Journal lamely defending the indefensible, including going into contortions to say that private jet travel did not require disclosure, and asserting that he was unaware that his benefactor had business before the court, despite multiple briefs showing just that."

Though "Alito identifies as an 'originalist' — someone who ostensibly makes decisions based on the original intent of the Framers and their historical context," Ornstein writes, "no genuine originalist would make an astonishing, ridiculous, and utterly ahistorical assertion like the one in the Journal interview. It is true that when the Framers drafted the Constitution, they obviously created the three branches and defined their powers and functions. But as I used to tell my American Government students, while there are three equal branches, the Constitution itself makes clear the pecking order" because "the Framers left it to Congress to define the broader architecture of the judiciary and the roles of particular courts."

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Ornstein explains that "Congress can impeach and remove Supreme Court justices, with no comparable power going the other way. The Senate can reject nominees for the court that have been proposed by the president. And Congress can, and has, added and subtracted members of the Supreme Court, going from its original six down to five and up to as many as 10 before settling at nine in 1869. But we also know that Article 3 gives little direct power to the Supreme Court. It has original, constitutionally mandated jurisdiction, but here is the critical element of Article 3, Section 2: '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.'"

Moreover, Ornstein continues, "Congress was expressly given the ultimate authority to limit or remove the most critical power of the court" and "from the get-go, has regulated the nature of the Supreme Court and the judicial system, starting with the First Congress and the seminal Federal Judiciary Act of 1789."

Ornstein adds that additional laws were passed strengthening congressional oversight, including that "Congress over the past 30 years has subjected all federal judges, including Supreme Court justices, to financial disclosure, created stringent limitations on gifts, including defining what constitutes a gift, and set limits on outside income."

And while Alito "has filed his disclosure reports, making clear that at least implicitly, he accepts Congress’s authority to regulate behavior on the Supreme Court," Ornstein concludes that Alito is "wrong on the facts, wrong on the history, on the wrong side of honesty and ethical standards," and that "Alito and his colleagues need to be reined in."

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Ornstein's analysis is available at this link.