Is the Supreme Court really above the law, Justice Alito?

Although it is unlikely that he would be seriously considered a poster child for judicial ethics, Justice Samuel Alito certainly shocked court watchers when he recently asserted that Congress has no power to set ethical rules for the U.S. Supreme Court.

Referring to the call by congressional Democrats for tougher rules, Alito told a Wall Street Journal interviewer, “No provision in the Constitution gives them the authority to regulate the Supreme Court.” It is apparently his considered position that SCOTUS is above the law — a law unto itself, as it were.

So much for withholding his stance on this issue until the question has been fully briefed and presented to the court for decision. Some might view this shot from the hip as less than ethical for a member of the nation’s highest court. The proclamation not only raises ethical questions but also questions about the broader practical implications of his position. 

Does his hands-off stance toward the imposition of ethical restraints on SCOTUS extend to the entire federal judiciary? Would he contend that the impeachment power of Congress does not extend to the federal judiciary, just because the Constitution does not explicitly say so? That would have been news to Alcee Hastings, who was impeached by Congress and removed from the bench in 1989.

Congress most certainly has the power to set ethical rules for all employees of each of the three branches of our government. As retired federal judge Micheal Luttig, a conservative icon, put it in a May 2 statement to the Senate Judiciary Committee, Congress “indisputably” has the power under the Constitution to prescribe ethical standards for SCOTUS.

What Luttig said in a follow-up interview with NPR struck me as even more important — that regardless of what any rules might require, federal judges should avoid even the possible appearance of impropriety. He said that federal judges “should essentially live like priests or saints or monks,” and “collegiality” beyond the federal bench puts justices “at risk of associating with people who could well have matters that could come before [them] or who might well have an interest in the cases that come before [them], financial or otherwise.”

Judge Luttig’s comments apply equally to those of us who have served in state court systems. When I donned my black robe as a member of the Idaho Supreme Court in January 2005, I felt that everything had changed in my relations with lawyers and the public in general. I’d been an Idaho lawyer for 38 years and had observed interactions between judges and lawyers in both the federal and state setting. 

I‘d read the Idaho Code of Judicial Conduct before deciding to seek the court position but was still surprised by the feeling of isolation that comes with the position. To be true to your obligation to avoid improper contacts and entanglements, the rules established by the courts or legislators are the bare minimum. You don’t wait for a potential conflict to arise but conduct yourself in a manner that proactively avoids them.

The idea of going on a prolonged outing with individuals who are politically active, even if not potential court litigants, would be completely out of the question, even if you paid all of your own expenses. When I read of SCOTUS justices cavorting on expensive fishing trips or excursions on yachts with politically active billionaires, I wonder what happened to their moral compass. And, failing to comply with reporting requirements for those lovely gifts leads you to one of two unsavory conclusions — either the justice was incapable of interpreting simple reporting instructions or there was a deliberate intent to violate the law. In either event, the offender is unqualified to serve in a judicial capacity.

When you occupy a judicial position, most attorneys and political types understand that you are off limits for intimate social interaction. There are always outliers who seek to curry favor, hoping to gain influence. They must be avoided like the plague. It is hard to believe that Harlan Crow would have initiated an intimate relationship with Justice Thomas and showered him with gifts if Thomas were not one of the nine members of SCOTUS. The same goes for the fishing excursion Justice Alito snagged from billionaire Paul Singer. That event certainly left a fishy smell.

Indeed, another senior federal district judge, Michael Ponsor, recently asked whether SCOTUS realized how “bad it smells?” He posited that justices “must have functioning noses” and “keep themselves far away from any conduct with a dubious aroma, even if it may not breach a formal rule.” He continued, “You don’t just stay inside the lines; you stay well inside the lines. This is not a matter of politics or judicial philosophy. It is ethics in the trenches.”

Democrats have not been put off by Alito’s off-the-mark fuming and appear to be moving forward with measures to infuse SCOTUS with ethical standards. It should not be a partisan issue. Honest, impartial jurists have made the United States legal system the gold standard across the world.

The rule of law we have established has allowed the U.S. to become the economic powerhouse of the world. We can’t allow it to be tarnished and cheapened by unethical conduct among the ranks of our highest court.

Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.