Supreme Court Associate Justice Samuel Alito has come out swinging against recent progressive criticisms. Justice Alito distinguished his fellow conservatives’ decision-making processes while seeing few differences on the left bloc of the Court. In exclusive interviews, he told the Wall St. Journal that “the traditional idea about how judges and justices should behave is they should be mute” and leave it to others, especially “the organized bar,” to defend them. “But that’s just not happening. And so at a certain point, I’ve said to myself, nobody else is going to do this, so I have to defend myself.”
Alito sat for two interviews over four hours with David B. Rivkin Jr. and James Taranto in April and July. After discussing the diversity of styles of judicial review employed by conservatives, Alito said of his liberal court colleagues, “I don’t see that there’s a difference in interpretive method.” The authors suggest the recent criticisms of conservative justices are not motivated by a genuine desire for transparency and fairness. Naming Pro Publica, who led the current offensive against Justice Thomas, they say these court critics are “really after ideologically congenial rulings, not to mention conformist press coverage.” It’s an argument well supported by the record, including zero criticism of judges who vote with the Court’s left bloc.
Honey Badger Don’t Care
The piece mentions the Supreme Court Ethics, Recusal, and Transparency Act, which purports to impose on the justices and their clerks’ regulations “at least as rigorous as the House and Senate disclosure rules.” It was put up by Senator Sheldon Whitehouse (D-RI), who has led the attacks on the Court’s legitimacy from his position on the Senate Judiciary Committee. But how can Congress regulate the judiciary? The Constitution gives Congress the power to impeach justices, not regulate their financial disclosures. Chief Justice John Roberts has refused to address these attempts at imposing congressional preferences onto the Court.
Justice Samuel Alito (Photo by Erin Schaff-Pool/Getty Images)
Justice Alito says the quiet part out loud. After stating he voluntarily follows disclosure statutes that apply to lower-court judges, Alito said: “Congress did not create the Supreme Court.” He’s right; the Constitution did. “I know this is a controversial view,” he continued. “But I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court—period.” Asked if his fellow justices agree, he said, “I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about.”
Chevron Preview?
Next term, the High Court’s docket includes Loper Bright Enterprises v. Raimondo, a case attracting massive interest because it addresses the Chevron deference. Named for a 1984 case, Chevron represents the notion that courts will defer to federal agency interpretations of a statute’s meaning if there is some ambiguity. The doctrine has been a hated feature of Judge-made law since its inception. As conservative legal commentator Marc Wheat wrote, “Agencies quickly stretched congressional ambiguity to include congressional silence on a matter, allowing them to create laws out of thin air.” He also said that, over the years, “Chevron deference has steadily empowered unelected, unaccountable bureaucrats, allowing them to legislate by fiat while undermining the role of Congress and distorting the original intent of America’s founders.”
Justice Alito did not say how he would rule in the case. Still, he did promise a bright-line response to the Chevron challenge: “I’m not in favor of overruling important decisions just by pretending they don’t exist but refusing to say anything about them.” The Supreme Court is on summer recess and is scheduled to resume hearing cases on October 2.
