“Everybody knows…” followed by, what everybody supposedly knows, can often be the fast track to oblivion, at least once people wake up and figure things out. They figure out what they knew for so long, might just not be true. One of my favorite members of the judiciary might have fallen into such a trap.
Over at Red State, my good friend and former boss, Streiff, has an article out regarding some back and forth between Democrat Senator Sheldon Whitehouse and Associate Justice Sam Alito. From the article:
Alito said, “I know this is a controversial view, but I’m willing to say it, no provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
What Alito is referring to is Rhode Island Senator Sheldon Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act. This bill which made it out of the Judiciary Committee last week on a party-line vote purports to improve public confidence in the Supreme Court by imposing a set of “ethics” regulations and creating a mechanism to enforce them.
While Streiff focuses on the political machinations behind the Democrat ploy, pardon me if I split a few hairs. Alito’s words, emphasis mine:
no provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
I love Justice Alito to death. He is stalwart in his defense of the Constitution and its clear meaning when the base document was drafted and the intent of those who drafted subsequent amendments. I am also not an attorney and even have some difficulty spelling L S A T. However, in my (not so) humble, lay opinion, he needed to word that differently.
There are two very specific categories in which Congress may regulate the High Court.
First, Congress may impeach (House) and remove (Senate) any federal judge, including SCOTUS Justices, for not “good behavior.”
Except for cases involving Constitutionally-enumerated “original jurisdiction,” Congress may limit the scope of cases SCOTUS may decide. The Constitution specifically says so, again, emphasis mine:
Clause 2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all 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.
The language looks pretty clear. It appears that Congress may indeed write regulations governing the Court’s Appellate Jurisdiction and it may also enumerate certain exceptions to its jurisdiction. The question here, is how “granular” such exceptions could be. Could Congress pass a regulation stating that each justice must adhere to a specific ethics regulation or have his personal jurisdiction removed? Think that Democrats, given the opportunity wouldn’t give that a go?
I’d really like to hear a Mark Levin or an Alan Dershowitz discuss this issue…and not in a dismissive, “that will never happen, just sit your lay butt down and let smarter people worry about this,” vein. We didn’t believe that Democrats would eliminate the filibuster for Presidential nominees. Their boy Harry Reid did just that for Federal judges, excepting the Supreme Court. Fortunately Mitch McConnell, at the first opportunity, punched back, costing the left, 3 seats on the High Court.
We got lucky. We might not be next cycle. Based on what the leftists are trying now and looking forward to future possibilities, we could be in serious trouble. If the Democrat party ever again achieves supermajorities in both Houses along with the Whitehouse, bet my fulsome fundament they will use this clause to remove conservative justices from decision-making, if not outright removing them from the court and replacing them with the like of Sotomayor, Kagan and Jackson.
Thus my comment above. Someone or several someones, conservatives with impeccable judicial credentials, needs to propose a path forward to prevent the left from neutering the Supreme Court and replacing it with one more amenable to their leftist agenda. Once they hold both houses, the Presidency and the Supreme Court, they will be able to use lawfare to make it impossible for Americans to win another presidential election. At that point, there will be nothing to stop them short of armed revolt.
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I agree with you that Congress can limit the jurisdiction of the federal courts and the appellate jurisdiction of the Supreme Court. For example, it limited the power of the federal courts to issue injunctions in labor disputes.
https://www.law.cornell.edu/uscode/text/29/107
The is a dispute if Congress tries limit the jurisdiction of federal courts and appellate jurisdiction of the Supreme Court where Congress passes a law that affects the constitutional rights in the Bill of Rights, such as free speech, and further Congress tries to limit the federal courts to hear and decide a challenge to the law. The Courts have to hear and decide such cases;
The Dems may have an argument to pass “ethics” laws for the Supreme Court. The Constitution says judges of the Supreme Court and lower federal courts shall hold office during “good behavior.” The Dems can argue they are passing a law to define “good behavior.”
The Supreme Court has allowed Congress to write laws not specified under the Constitution under Article II, Section 8: “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers…”
Congress can argue that the Supreme Court cases allowing a broad power to Congress applies to defining “good behavior.”
One problem is that the Supreme Court would then have to decide if Congress can pass such a law defining “good behavior” to Supreme Court justices. The Court has always maintained it is an equal branch with the President and Congress, and would rule Congress does not have the power to pass “ethics laws” for the Court. A President would make the same argument that Congress cannot pass an “ethics law” for the President.