If American democracy is premised on a system of checks and balances between three co-equal branches of government, then Samuel Alito seems to have completely lost the plot. The conservative Supreme Court justice—whose judicial approach is supposedly rooted in constitutional “originalism”—made clear in comments to the Wall Street Journal Friday that he does not believe he belongs to an equal branch of government, but rather an unelected, unaccountable superlegislature.
“I know this is a controversial view, but I’m willing to say it,” Alito told the Journal, which has been a friendly destination for the right-wing justice of late. “No provision in the Constitution gives [lawmakers] the authority to regulate the Supreme Court—period.”
Alito—whose precedent-shattering Dobbs opinion last year helped send public trust in the Supreme Court into a tailspin—was responding to legislation advanced by Democrats on the Senate Judiciary Committee to reform the high court, which they took up as Alito and fellow right-winger Clarence Thomas face scrutiny over undisclosed gifts and trips they received from wealthy, well-connected conservatives. Chief Justice John Roberts has, himself, challenged the scope of the Democrats’ oversight efforts, refusing to testify before Dick Durbin’s committee and suggesting the court could handle its ethical considerations internally. But Alito went even further Friday, implying that Congress had virtually no authority over the Supreme Court.
“The traditional idea about how judges and justices should behave is they should be mute,” Alito told the Journal’s James Taranto and David B. Rivkin, a lawyer representing Leonard Leo, the Federalist Society board co-chair who organized a 2008 luxury fishing trip for Alito that the justice failed to report. But “at a certain point I’ve said to myself,” he added, “nobody else is going to do this, so I have to defend myself.”
Democrats expressed outrage at the remarks—and for good reason: Alito’s defense of the scandal-plagued court was itself scandalous, especially coming as it did with an assist from a lawyer who just last week helped Leo stonewall the Judiciary Committee’s ethics investigation. “Shows how small and shallow the pool of operatives is around this captured Court,” wrote Senator Sheldon Whitehouse, the Democrat behind the Supreme Court Ethics, Recusal, and Transparency Act the committee took up recently. “Same folks keep popping up wearing new hats.”
It should go without saying that Alito’s argument is patently wrong; as Senator Chris Murphy and others pointed out, he has a seat on the court only because it was expanded through congressional regulation in the first place. But Alito’s erroneous defense also provides a window into how the court’s conservative majority views itself and the power it wields: “These justices on the Supreme Court, these conservative justices, just see themselves as politicians,” as Murphy told CNN on Sunday. “They just see themselves as a second legislative body that has just as much power and weight to impose their political will on the country as Congress does.”
In fact, Alito and his colleagues seem to believe they have more power than Congress, acting as a “massive national veto pen,” as Angela Vasquez-Giroux, vice president of communications and research at NARAL Pro-Choice America put it to me earlier this month.
If there’s something unconstitutional or undemocratic here, it’s not an effort by one branch of Congress to check the power of another; it’s Alito’s vision of a Supreme Court that’s accountable to no one. Democrats have an uphill battle to rein the rogue court in. And if anything, the justice’s remarks should only galvanize the party to keep plodding along: “This seems escalatory, and nudges even reluctant court watchers and skeptics of statutory reforms toward doing something,” wrote Senator Brian Schatz. “This is a fancy way of telling everyone to pound sand because he’s untouchable.”