Supreme Court Justice Samuel Alito Jr. JoshEllie1234, CC BY-SA 4.0 , via Wikimedia Commons

Chris Murphy (D-CT) nailed it again when he called Justice Samuel Alito “stunningly wrong.

In Alito’s interview with David Rivkin and James Taranto, Alito quipped that “Congress did not create the Supreme Court”—the Constitution did. “I know this is a controversial view, but I’m willing to say it,” he says. “No provision in the Constitution gives them the authority to regulate the Supreme Court —period.”

Thomas Keefe

Considering Alito’s parsing of words and definitions in his 2023 op-ed, it seems appropriate to question his use of terminology as well. Article III of the Constitution states that:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour [sic], and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

It is concerning that the second senior member of the U.S. Supreme Court is apparently unaware that the Congress did, in fact, create the Court through the Judiciary Act of 1789. While the Constitution conceptually named the Court in Article III, Congress created the mechanisms of the Court from determining the number of seats, to creating the budget for the Court, and later constructing the Supreme Court Building. Most recently, Congress extended U.S. Marshal protection to the members of the Court in 2023. 

What is more, according to Dan Berman, Alito’s interviewer David Rivkin will appear as an attorney before Alito and the rest of the U.S. Supreme Court next year. He will be representing the plaintiffs in Moore v. United States. It will be interesting to see whether Alito recused himself in that case considering Rivikin’s in the Wall Street Journal. Alito did not recuse himself in Argentina v. NML Capital, joining Justices Sotomayor and Gorsuch in prima facie conflicts of interest

It is worth noting that Justice Brown Jackson did recuse herself in Students for Fair Admissions v. Harvard. Dan McLaughlin criticized Jackson’s non-recusal in the decoupled USC case, so one might have expected McLaughlin to be equally critical of Alito, Thomas, and Gorsuch. But he has not been.

Again, neither Neil Gorsuch (a Republican) nor Sonia Sotomayor (a Democrat), recused themselves in the Penguin Publishing cases. Both were in error not to do so. Senator Sheldon Whitehouse (D-RI) has proposed legislation to strengthen the ethics standards for all members of the Supreme Court, not just Thomas and Alito. The conservative media (the National Review and Wall Street Journal) are making ethics standards into a partisan issue.  It is James Taranto, an editor with the Wall Street Journal, who has rushed to Clarence Thomas’ defense and made ad hominem attacks on ProPublica in his official capacity while, at the same time, pens a sycophantically rosy op-ed

McLaughlin attacks the “Left” yet the so-called “Left” is not attacking the conservative members of the Court; the criticism and the recommended solutions apply to all SCOTUS members. Yet Alito and Thomas’ friends in Congress, like Sen. Lindsey Graham (R-SC) have forsaken their oversight duties and bashed calls for ethics reforms.

Chris Murphy (D-CT) was correct to call Justice Alito “stunningly wrong.” Equally stunningly wrong are David Rivkin, James Taranto, Dan McLaughlin, and Lindsey Graham. America deserves a Supreme Court with the highest standards, so not the whining word-smithing of George W. Bush’s second choice nominee, Samuel Alito. Perhaps Harriet Myer’s replacement should focus on the “good Behavior” line in Article III rather than parsing the word “facilities” and “hospitality” in the Ethics in Government Act of 1978.

Tom Keefe lives in Branford.