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.
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.
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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.
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.
What happens when no party can get a 2/3 majority or no house can achieve a 2/3 plurality?
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.
Maybe the supreme Court should be like jury duty. Randomly select from a pool of judges from around the country to fill the position for a certain period of time.
Judges should not be political.
Good thing they’re not political now then, right?
That is my concern. In an ideal world we would have well educated apolitical folks with decades of good faith judicial practice on the supreme Court.
We don’t live in the ide world so judges are political and you are voting for them when you vote for your representatives.
Honestly if we fixed the house and Senate (add Puerto Rico and DC as states, uncapped the house) it might get better in the long term, but doesn’t solve the problem.
The Constitution did not plan on the elected officials being corrupt and unwilling to do “the right things”, so I think it has proven to be fundamentally broken.
I don’t know how to fix 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.
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.
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?
Not untouchable. But out of reach of the day to day politics of that branch. Congress can Impeach a SCOTUS member if they truly believe that they’ve done wrong. But the super-majority requirement of impeachment means that it has to be a decision that’s above general politics.
The same idea is why only the Senate advises on their appointments. The Senate was believed to be a body that would be above petty politics given that it’s members were to be appointed by the legislatures of the states. So the idea of a heavily partisan judge to get appointed was believed to be minimized.
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.
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.
Why would he ever bluff? He holds all the cards!
