“No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”
That’s according to Justice Samuel Alito, one of the nine people in the country who have the final say on what the Constitution means, while the rest of us have to deal with the consequences. Alito uttered these words in an interview he gave to the Wall Street Journal published on Friday.
It’s not surprising he’d have this opinion of lawmakers’ authority, or lack thereof. Judicial supremacy is having its moment, with the author of Dobbs among those leading the charge: Alito and his colleagues decide who gets health care and who can vote, who lives or dies, where we can pray or carry a gun, whose votes count and whose don’t. They strike down decades-old precedents and overturn the will of the people, as articulated by their representatives in Congress.
So while they’re at it, why not scrap the 1978 Ethics in Government Act requirement that the justices file annual financial disclosure reports available for public inspection? The reports are fairly modest in scope, requiring the justices to disclose little more than their outside teaching and book income, spousal place of work, reimbursed travel, and major debts and investments, and each category contains significant exceptions: spousal salary, vacations paid for by “friends” and home mortgages, for example, are all exempted from disclosure.
Some, including Alito, argue that the justices aren’t currently bound by the law. The nine, he said, “voluntarily follow [the] disclosure statutes that apply to lower-court judges and executive-branch officials,” implying it’s been out of the goodness of their hearts that they’ve complied to this point.
But with this shot across the bow, it appears that the Age of Marginal Accountability may soon yield to the Era of You Can’t Make Us.
Here’s how I imagine the lawsuit seeking to overturn the law will proceed:
The effort will have an air of propriety because, for one, it’s not going to be Alito himself who files suit. It’ll be a lower-court judge, probably from Texas, who’s directed to do it, and he’ll file not in Washington, where the office that oversees the disclosure regulations is located, but in a friendly neighboring district.
Maybe he’ll get a few other judges to join him as plaintiffs to give the impression that the filing requirements are burdensome for jurists across the country. And although every federal judge would have a conflict of interest here, someone has to hear the case, we’ll be told, so it’ll more likely than not proceed.
In the complaint, the judges will claim that the disclosure law is unconstitutional under separation-of-powers principles (if so, then so are the constraints that Congress annually places on the court’s budget), that the filing process is burdensome (never mind judges get reimbursed up to $1,370 when their accountant fills out the paperwork for them) and endangers the lives of judges (obscuring the redaction authority in the law that keeps judges safe).
If they’re cheeky, they may even state that the law “unconstitutionally interferes with judicial independence by subjecting federal judges to familial disquiet, political pressure, and increased threats of physical or economic harm at the hands of criminals and disgruntled litigants.” That’s what several lower-court judges alleged in the first effort to overturn the law, back in 1979, in Duplantier v. U.S.
Those judges failed, but the post-Watergate era is not the post-Trump era. These days, you can bet that although a three-judge panel in the Fifth Circuit might uphold the law, citing Duplantier, someone or ones on the panel would write a concurrence laying out the argument as to why the disclosure requirements are, in fact, unconstitutional, teeing the issue up nicely for One First Street.
There’s already one likely vote for certiorari from Alito and likely a second one from Chief Justice John Roberts, who wrote in 2011, “The Court has never addressed whether Congress may impose [financial disclosure] requirements on the Supreme Court.”
A third would surely come from Justice Clarence Thomas, who’s had his own financial disclosure challenges over the years. Only one more vote to go among the other six before the court takes the case, where a determination of unconstitutionality would not only “free” the lower-court judges of their disclosure requirements but would also end those requirements for the justices. (Judges and justices are lumped together in the law and are collectively referred to as “judicial officers.”)
Again, the idea that the public servants who sit on the Supreme Court are somehow exempt from any accountability measures by virtue of their life tenure, or because their court was created not by Congress but by the Constitution itself, is bonkers.
But this is the path the Alito is pointing toward, and it’s only a matter of time before a judge who thinks the public shouldn’t know about his grocery-chain fortune, or judges who want to keep their participation in “judicial education seminars” that more closely resemble paeans to outcome-oriented right-wing legal theories out of public view, files suit.
If successful, the current (and formerly bipartisan) congressional efforts to require the adoption of a Supreme Court code of conduct, more thorough gift and travel disclosures and more stringent recusal rules—all quite modest and all consistent with regulations in the other two branches—would also die. A barely accountable court would become a completely unaccountable court. We can’t let that happen.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Gabe Roth is executive director of Fix the Court, a national nonpartisan organization that advocates for greater transparency and accountability in the federal courts.
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