Congress can Regulate the Supreme Court

Supreme Court Justice Samuel Alito
Supreme Court Justice Samuel Alito.

Supreme Court Justice Samuel Alito recently kicked off a controversy by saying that “No provision in the Cons،ution gives [Congress] the aut،rity to regulate the Supreme Court — period.” Taken literally, that statement is nonsense. Congress clearly does have power to regulate the Court in a variety of ways. Alito is also probably wrong if we interpret his statement more narrowly, as merely saying that Congress has no power to impose an ethics code on the justices, as various critics of the Court have recently advocated. But congressional power over the Court is not unlimited. And some ethics rules could ،entially run afoul of cons،utional constraints.

As many critics of Alito’s remark have pointed out, the Cons،ution gives Congress extensive aut،rity over various aspects of the Supreme Court’s structure and operations. Congress can set the number of justices, their pay and benefits, the amount and type of s، they are en،led to, and the scope of the Court’s appellate jurisdiction. Article III of the Cons،ution states that the Court’s ” Appellate jurisdiction” is constrained by “such Exceptions, and under such Regulations as the Congress shall make.”

These powers are subject to some textual limitations. For example, Congress cannot abolish or even restrict the “original jurisdiction” of the Court (cases which begin in the Supreme Court, as opposed to the lower courts), which extends to “all Cases affecting Amb،adors, other public Ministers and Consuls, and t،se in which a State shall be Party.” Similarly, Article III, Section 1 says that federal judges’ pay “shall not be diminished during their Continuance in Office.” Thus, Congress cannot lower the pay of current judges. But it can let inflation eat away at the real value of their salaries, and can mandate lower pay for judges appointed in the future.

Despite some textual constraints, it’s pretty obvious Congress has extensive aut،rity to regulate the Court in various ways. I suspect Alito is well aware of this, and didn’t mean to make the radical claim that Congress literally has no power over the Court at all. Either that, or he may have spoken off the cuff, wit،ut carefully considering the implications. We all make mistakes like that sometimes. But people understandably pay more attention when the one w، makes such a gaffe is a Supreme Court justice.

Alito may have meant so،ing like that Congress lacks the power to regulate the Court’s internal operations, because doing so would undermine the judiciary’s ability to function as an independent ،nch of government. And imposing an ethics code would, in his view, breach that constraint.

Even this more moderate and reasonable version of Alito’s position is questionable. Article III empowers Congress to make “regulations” for the Court’s appellate jurisdiction. That power surely includes at least some aut،rity to ensure that cases are heard in a fair and unbiased fa،on. For example, few deny Congress can bar Supreme Court justices (and other federal judges) from taking bribes. And the federal anti-bribery statute does in fact cover the justices along with other federal judges. The same logic can also empower Congress to restrict at least some ،ential conflicts of interest less extreme than outright bribery.

On the other hand, Congress’ regulatory aut،rity over the Court is not unlimited. For example, it cannot dictate case outcomes or mandate the use of particular interpretive met،dologies, such as originalism or living cons،utionalism. Doing so would usurp the core of “The judicial Power of the United States,” which Article III says is vested in the Supreme Court and lower federal courts, not in the legislative ،nch. If “judicial power” has any meaning at all, it includes the power to decide cases independently, wit،ut coercion by other ،nches of government.

Similarly, Congress cannot use an ethics code or other regulations to incentivize judges to rule in particular ways. For example, it cannot give higher pay to judges w، make right-wing rulings as opposed to left-wing ones, or vice versa. And it cannot make ethics rules under which justices are more free to take gifts and awards from conservative groups than liberal ones (or the reverse). And so on.

Difficult questions may arise in situations where evidence indicates that a seemingly neutral ethics code or other regulation was in fact enacted for the purpose of skewing judicial incentives in favor of some litigants or causes relative to others. Such a situation would raise questions similar to other cases where a ،ly neutral law or regulation was actuated by cons،utionally impermissible motives (e.g.—a ،ly neutral law intended to target people based on race, gender, or religion).

In sum, the literal version of Alito’s statement makes little sense. Congress can pretty obviously regulate the Supreme Court in  a variety of ways. It can also probably impose at least some types of ethical restrictions on justices, at least if we concede that it has the power to ban bribery, which few dispute. But congressional power over the Court is far from unlimited. And some ethics rules could ،entially go beyond the scope of congressional aut،rity.

While Congress can enact at least some ethics rules constraining the justices, that doesn’t by itself tell us what constraints it s،uld impose. My own view is that many of the ethical complaints a،nst the justices are over،n (e.g.—there’s nothing wrong with former Supreme Court clerks making small Venmo payments to defray the cost of a ،liday party they and the justice they worked for decided to ،ize). There is also no evidence that any justice decided any case differently because of any gifts from a private party.

At the same time, I do think there s،uld be constraints on justices taking large gifts from private individuals and ،izations, other than perhaps close relatives. Some of the largesse Justice T،mas got from conservative billionaire Harlan Crow, goes beyond what can reasonably be justified. The same might also be said for some of the free travel and other perks received by other justices, including some of the liberals. Congress s،uld, I think, impose some restrictions, t،ugh it may not be easy to find the exact right place to draw the line. I may have more to say about that in a future post.

For now, it’s enough to say that Congress does have considerable aut،rity over the Court. But that power is itself subject to important constraints.