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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: The Supreme Court is not in session, but that hasn't

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Speaker 1: stopped Justice Samuel Alito from creating controversy again. Last summer

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Speaker 1: to Galla in Rome, Alito took on foreign leaders for

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Speaker 1: criticizing the Court's decision overturning the constitutional right to abortion.

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Speaker 2: I had the honor of this term of writing, I

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Speaker 2: think the only Supreme Court decision in the history of

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Speaker 2: that institution that has been land based by a whole

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Speaker 2: string of foreign leaders.

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Speaker 1: This summer, in the opinion pages of The Wall Street Journal,

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Speaker 1: Alito took on Congress for trying to pass an ethics

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Speaker 1: code for the justices, saying Congress has no power to

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Speaker 1: regulate the Supreme Court. It wasn't the first time that

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Speaker 1: the conservative justice has made such a claim, although it

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Speaker 1: didn't attract.

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Speaker 3: As much attention.

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Speaker 1: In his testimony on the Supreme Court's budget at a

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Speaker 1: House hearing in twenty nineteen, we.

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Speaker 4: Follow the code of conduct that applies to the lower courts,

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Speaker 4: but we don't regard ourselves as being legally bound by it.

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Speaker 4: And the reason for that is can be found in

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Speaker 4: the structure of Article three of the Constitution, which says

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Speaker 4: it's a judicial power shall be revested in one Supreme Court.

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Speaker 1: The irony is that, in defending himself against ethics concerns

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Speaker 1: over his failure to report a phishing trip to Alaska

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Speaker 1: in two thousand and eight paid for by a billionaire

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Speaker 1: hedge fund manager whose business came before the court later,

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Speaker 1: Alito raised new ethical concerns by commenting on pending legislation

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Speaker 1: and giving an interview to a lawyer will be before

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Speaker 1: the Court in a major.

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Speaker 3: Tax case this term.

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Speaker 1: Democrats like Senator Chris Murphy of Connecticut say that Alito

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Speaker 1: is making the case for the need for an ethics

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Speaker 1: code for the justices.

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Speaker 5: And so it is just wrong on the facts to

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Speaker 5: say that Congress doesn't have anything to do with the

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Speaker 5: rules guiding Supreme Court. In fact, from the very beginning,

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Speaker 5: Congress has set those rules. But it is even more

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Speaker 5: disturbing that Alito feels the need to insert himself into

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Speaker 5: a Congressional debate.

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Speaker 1: Joining me is constitutional law expert David super, a professor

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Speaker 1: at Georgetown Law School. So Alito said this about Congress, quote,

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Speaker 1: no provision in the Constitution gives them the authority to

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Speaker 1: regulate the Supreme Court period. What's your take on that interpretation?

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Speaker 6: Absurd? He needs to read the Constitution as.

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Speaker 1: Far as checks and balances. Is he arguing that there's

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Speaker 1: no check on the Supreme Court, but the Supreme Court

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Speaker 1: can check the other branches of government.

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Speaker 6: That's exactly what he's arguing. For someone who talks a

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Speaker 6: great deal about checks and balances, he's proposedly an unchecked

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Speaker 6: branch of government. And if this one thing we know

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Speaker 6: about the Framers is they did not like unchecked power.

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Speaker 1: Democrats have been saying things like, you know, his seat

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Speaker 1: is there because Congress expanded the court, and Congress sets

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Speaker 1: the Supreme Court's budget and required the High Court to

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Speaker 1: hear certain cases classes of disputes. Even the date that

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Speaker 1: the Supreme Court term starts was set by Congress and

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Speaker 1: the oath the justices take, how is he missing this.

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Speaker 3: Part of it?

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Speaker 1: And he says that he thinks it's something we the

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Speaker 1: other Supreme Court justices have all thought about.

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Speaker 6: He has been known to make some very brazen, very

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Speaker 6: strange assertions in the past. His defensive Citizens United comes

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Speaker 6: to mind, and I think he got his desires way

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Speaker 6: out in front of his legal analysis. The Supreme Court's

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Speaker 6: jurisdiction on most matters is subject to such regulation and

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Speaker 6: exceptions as Congress shall provide. One regulation, obviously, could be

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Speaker 6: that they have an ethics code. Congress could cut off

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Speaker 6: most of their jurisdiction until such time as they adopt

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Speaker 6: an ethics code, or indeed an ethics code prescribed by Congress.

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Speaker 1: What Aldo's really commenting on is this legislation that has

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Speaker 1: gotten through the Senate Judiciary Committee.

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Speaker 3: So it would impose on the Supreme.

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Speaker 1: Court new requirements for financial disclosures and for recusals from

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Speaker 1: cases in which the Justice may have a conflict of interest.

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Speaker 1: So he's commenting on the constitutionality of pending legislation. Is

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Speaker 1: that just unusual or is that unethical as well?

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Speaker 6: That's probably unethical. He is complaining about Congress intervening in

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Speaker 6: the affairs of the Court, and he is intervening in

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Speaker 6: the affairs of Congress. Justice Kaken, for example, has recused

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Speaker 6: herself from many cases that were simply under discussion when

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Speaker 6: she was at the Justice Department, not even clear that

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Speaker 6: she was vocal in those discussions, and certainly they weren't public.

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Speaker 6: He is now publicly taking a position on legislation that

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Speaker 6: he could be asked to either rule on or comply with,

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Speaker 6: or both.

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Speaker 1: David Rifkin, the lawyer who interviewed Alito for four hours

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Speaker 1: and co wrote the opinion piece, is now representing litigants

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Speaker 1: before the Supreme Court in a major tax case. And

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Speaker 1: Rifkin also wrote a letter to two Democratic senators that

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Speaker 1: defended Alito's travel and the activities of Leonard Leo, who's

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Speaker 1: a well known conservative activist who led the Federalist Society

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Speaker 1: for many years. Is that also unethical or an ethics concern?

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Speaker 6: I don't know a single lower court judge that would

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Speaker 6: do that. I don't believe there has ever been a

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Speaker 6: judge that I've practiced in front of that was willing

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Speaker 6: to talk to me about anything outside the presence of

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Speaker 6: opposing counsel, except in very, very narrow circumstances where the

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Speaker 6: law explicitly allows ex party communication. I ran into a

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Speaker 6: judge in a case I was litigating in the eye doctor,

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Speaker 6: and he wouldn't talk to me. He wouldn't say hello,

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Speaker 6: and I think he was right.

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Speaker 1: Well, he says that he's defending himself because quote nobody

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Speaker 1: else would.

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Speaker 3: But it seems like he's raising more.

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Speaker 1: Ethics concerns as he's in the process of defending himself

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Speaker 1: against ethic concerns.

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Speaker 6: It is a little bit circular and frankly, rather foolish.

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Speaker 6: The first thing that a good lawyer does is not

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Speaker 6: make the other side's case for it.

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Speaker 1: Democratic Senator Chris Murphy said, the Conservative Justices see themselves

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Speaker 1: as a second legislative body that has just as much

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Speaker 1: power and right to impose their political will on the

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Speaker 1: country as Congress does, and it seems that with every

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Speaker 1: move Alito is reinforcing that view.

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Speaker 6: It certainly does. This is model commentary for the imperial judiciary,

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Speaker 6: and we don't have an imperial presidency, we don't have

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Speaker 6: an imperial Congress, and there's no indigation that anybody ever

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Speaker 6: intended an imperial judiciary.

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Speaker 1: The latest uproar about Alito was caused by his private

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Speaker 1: jet travel with Paul Singer, whose hedge fund came before

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Speaker 1: the court ten times in cases after that trip, and

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Speaker 1: it was arranged by the conservative activist Leonard Leo. Is

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Speaker 1: that something that Alito should have disclosed on his annual

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Speaker 1: financial disclosure forms.

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Speaker 6: I think it is, and it certainly is an occasion

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Speaker 6: for him to refuse himself. If you look at the

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Speaker 6: grounds on which various justices have accused themselves in the past,

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Speaker 6: it's for things much much smaller than that. Routinely, the

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Speaker 6: principle in judicial ethics is that judges must not just

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Speaker 6: avoid impropriety, but avoid the appearance of impropriety. And taking

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Speaker 6: extremely valuable trips that any number of people would pay

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Speaker 6: a great deal of money for from someone who is

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Speaker 6: done litigating in front of the court certainly creeds an

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Speaker 6: appearance of impropriety. It's absurd to say that it doesn't.

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Speaker 1: When the Supreme Court left for summer recess, they were

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Speaker 1: at a stalemate on adopting a formal ethics code for themselves,

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Speaker 1: and according to CNN, the Chief Justice has been seeking

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Speaker 1: unanimity among the nine justices.

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Speaker 3: Should the Chief Justice be doing more than.

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Speaker 6: That, he should. We're getting very close to the point

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Speaker 6: where the Chief Justice is going to have to choose

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Speaker 6: between standing up for ethics and being tired by the

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Speaker 6: questionable behavior of his colleagues. If his colleagues won't come around,

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Speaker 6: and it's pretty clear that at least two of them

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Speaker 6: are very resistant to that, then he must either accommodate

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Speaker 6: them and be implicated in their impropriety, or stand up

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Speaker 6: to them and take the consequences.

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Speaker 1: Well, what are the consequences really with this Congress, which

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Speaker 1: is not even likely to pass the ethics code? What

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Speaker 1: are the consequences for this court? It seems like there

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Speaker 1: are none.

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Speaker 6: I'm not sure that the legislation that the Democrats have

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Speaker 6: written is ideally drafted, but I think there are a

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Speaker 6: lot of Republicans that don't want to be associated with

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Speaker 6: this sort of thing either. They would certainly not support

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Speaker 6: anything retroactive that would target what Thomas Alito and others

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Speaker 6: have already done. But I think it would be possible

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Speaker 6: to come up with a code of ethics that would

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Speaker 6: get bipartisan support and could get passed through. The Chief

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Speaker 6: Justice is concerned with how the public perceives the Court.

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Speaker 6: He insists, for example, that they're no democratic or Republican

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Speaker 6: justices and has been upset about that the Court is

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Speaker 6: going to be perceive not just as ideological, but is

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Speaker 6: completely corrupt unless the Chief Justice acts. The fact is

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Speaker 6: that five justices can issue an order, so I understand

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Speaker 6: why he wants unanimity, but he can tell the holdouts

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Speaker 6: that he's got five votes for a code of conduct,

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Speaker 6: and he will push it through with or without their support.

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Speaker 1: Alito speculates about whether outright defiance of Supreme Court decisions

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Speaker 1: by the public may be in the offing quote for

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Speaker 1: the first time since the aftermath of Brown v. Board

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Speaker 1: of Education, I mean, the Supreme Court doesn't have enforcement powers,

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Speaker 1: does it?

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Speaker 6: There actually are pretty extensive enforcement powers. The question is

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Speaker 6: will the various officials that are charged with enforcing these

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Speaker 6: orders regard them as legitimate if they come from a

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Speaker 6: court that is perceived to be first to sale to

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Speaker 6: the highest bidder. And we haven't reached that point yet,

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Speaker 6: but I think we're getting there. During Brown versus Board

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Speaker 6: of Education, there was no serious question about the legitimacy

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Speaker 6: of the court or the integrity of the court. People

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Speaker 6: just vehemently disagreed with the substance of its decisions. Here, however,

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Speaker 6: the question is whether this court is acting independently and

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Speaker 6: is making fair judgments on the cases that deserve to

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Speaker 6: be respected. And the degree to which extraordinarily valuable privileges

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Speaker 6: are being bestowed on justices by partisans raises questions about that.

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Speaker 3: He also said he seemed to say that you know

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Speaker 3: he did.

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Speaker 1: He said, wait till second, he voluntarily follows disclosure rules

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Speaker 1: that applied to lower court judges and executive branch officials.

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Speaker 1: Seemed to indicate that he didn't really have to. It's

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Speaker 1: a voluntary thing on his part.

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Speaker 6: Well, that's part of his imperial judiciary approach, that no

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Speaker 6: one has the ability to check the Supreme Court if

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Speaker 6: that's manifestly wrong.

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Speaker 1: His take on Justice Thomas, frankly was a little surprising

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Speaker 1: to me.

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Speaker 3: Basically, he said he doesn't care about president. Quote.

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Speaker 1: Justice Thomas gives less weight to starry decisive than a

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Speaker 1: lot of other justices, and he says, in a way

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Speaker 1: it's a virtue of his jurisprudence. He sticks to his guns. Well,

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Speaker 1: if the Supreme Court is not, and we've seen multiple

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Speaker 1: instances in recent years, if they're not going to give

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Speaker 1: weight to precedent, then what do they.

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Speaker 3: Give weight to.

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Speaker 6: Well, I think Justice Alido and Justice Thomas would say

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Speaker 6: they give weight to an original interpretation of the Constitution,

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Speaker 6: and that the original public meaning of the framers of

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Speaker 6: the various parts of the Constitution is what Haro's legitimacy,

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Speaker 6: not the decisions of the Supreme Court. If they were

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Speaker 6: faithful in following that original public meaning. There might be

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Speaker 6: some credibility to that that. As Justice Jackson showed in

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Speaker 6: the affirmative action cases, the originalist meaning is only getting

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Speaker 6: carted out when it serves their particular ideological agenda.

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Speaker 1: Well, it always makes me laugh when laugh or cry.

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Speaker 1: Perhaps when you look back at the confirmation hearings for

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Speaker 1: Supreme Court justice and they all, every single one talk

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Speaker 1: about respecting precedent.

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Speaker 3: I don't know how they can do it with a

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Speaker 3: straight face.

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Speaker 6: Some of them probably think that when they're a nominee

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Speaker 6: and get drunk with power when they're on the court,

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Speaker 6: which is all the more reason that the Court.

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Speaker 1: Should not be above Obviously, if they can't get this

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Speaker 1: ethics code pass, it's not going to happen with this Congress.

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Speaker 3: But would you be in favor of packing the court?

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Speaker 6: No, I think that effectively wrecks the court. These ethics

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Speaker 6: violations may do the same thing. But I think the

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Speaker 6: cutry deeps a viable Supreme Court, and I would favor

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Speaker 6: taking steps to make sure that it has. I would

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Speaker 6: absolutely favor changing the nomination and confirmation process so that

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Speaker 6: we don't get political extremists on the court, and so

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Speaker 6: that justices need to have a much broader level of

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Speaker 6: respect and approval than just the coalition of the President

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Speaker 6: and the Senate majority. But packing the court would cause

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Speaker 6: everyone to regard it as a largely worthless body.

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Speaker 3: What about term limits for the justices?

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Speaker 6: Certainly not nearly troubling is packing it. But I actually

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Speaker 6: did a study of what would happen if we had

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Speaker 6: had term limits in the past, and the answer is

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Speaker 6: not very pretty. What you would end up having is

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Speaker 6: a court that reflects current political passions much more. Some

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Speaker 6: of the great moderating influences on the Court have been

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Speaker 6: justices that were nominated and confirmed in a prior period.

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Speaker 6: Justice Stevens was regarded as a conservative when President Ford

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Speaker 6: put him on the court, but events changed and he

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Speaker 6: ended up being a major moderating force just as Suitor,

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Speaker 6: very much the same way, just as White, not that

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Speaker 6: I was a big fan of it, but was regarded

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Speaker 6: as a liberal pick when he was put on and

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Speaker 6: became a swing vote a moderating conservative voice as time

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Speaker 6: went on. If you make sure that all the justices

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Speaker 6: were met didn't confirm within the last eighteen years, then

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Speaker 6: you mostly have justices that are partisans to the contemporary

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Speaker 6: political battles.

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Speaker 1: Leto said, you know, no one else is going to

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Speaker 1: defend him. Do you think that Supreme Court justices should

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Speaker 1: be allowed to defend themselves in this way? From you know,

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Speaker 1: public outcry.

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Speaker 6: Much of the country was filled with impeach Earl Warren

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Speaker 6: billboards throughout the nineteen sixties. An Eeral Warren was not

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Speaker 6: giving public speeches defending himself. Other people defended him, but

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Speaker 6: he believed it was improper to defend himself even against

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Speaker 6: the most aggressive personal attacks of the kind that neither

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Speaker 6: Justice Leado nor Justice Thomas have faced. It's simply not

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Speaker 6: true that no one else will defend them. The whole

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Speaker 6: point of this problem is that they are closely intertwined

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Speaker 6: with a right wing machine determined to pack and dominate

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Speaker 6: the court, and the other members of that machine are

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Speaker 6: more than happy to defend them.

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Speaker 1: So when this tax case comes before the court with

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Speaker 1: Rifkin as one of the lawyers, it seems pretty obvious

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Speaker 1: that Alito should recuse himself.

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Speaker 3: Yes, but if he doesn't, nothing could be done.

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Speaker 6: There's no good way to force that to happen. There

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Speaker 6: is a little bit of a precedent in that the

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Speaker 6: other eight justices concluded at one point that Justice Douglas

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Speaker 6: was not sufficiently confident that he should be casting deciding

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Speaker 6: votes and cases, and so they agreed towards the end

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Speaker 6: of his time on the Court that they would set

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Speaker 6: over for reargument the next year any case in which

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Speaker 6: Justice Douglas's vote was decisive. The other justices could simply

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Speaker 6: decide that they will not vote for a resolution in

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Speaker 6: which Justice leaders vote is decisive if he is conflicted,

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Speaker 6: or any other justice his vote as decisive if they

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Speaker 6: are conflicted.

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Speaker 3: I can't imagine this Court doing that. I guess we'll see.

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Speaker 6: It really depends on how they feel about their place

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Speaker 6: and history, how they feel about their place in American society,

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Speaker 6: in American government. This sort of corruption lends a very

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Speaker 6: bad odor to the whole court. It would be nice

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Speaker 6: to think that some of these justices feel strongly enough

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Speaker 6: about integrity and about how they're regarded that they would

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Speaker 6: be willing to force their colleagues to improve their ethical standards,

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Speaker 6: even if those are colleagues that they mostly agree with.

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Speaker 1: Is there anything else that Congress can do if this

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Speaker 1: ethics code fails, as it's likely to as it's done before.

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Speaker 6: One thing we haven't talked about is that Congress, under

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Speaker 6: the Constitution has exclusive legislative authority over the District of Columbia.

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Speaker 6: It has passed a lot of that to the DC

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Speaker 6: City Council that it can legislate over at DC all

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Speaker 6: at once. And Congress could very easily pass a statute

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Speaker 6: on judicial ethics for all judges in the District of

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Speaker 6: Columbia that includes disclosure requirements for ucial requirements, and that

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Speaker 6: criminalizes making gifts to any judge while one has matters

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Speaker 6: that may come before that judge, And if it applies

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Speaker 6: to all judges in the District of Columbia, would apply

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Speaker 6: to the nine of them.

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Speaker 1: Also, what about I mean Congress controls the budget. Could

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Speaker 1: Congress cut the budget or hold the budget up?

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Speaker 6: They can't defund the justices salaries. In theory, I suppose

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Speaker 6: they could shut down much to the rest of the court,

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Speaker 6: make them lay off their clerks and so on. I

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Speaker 6: don't see much point to that when the simpler approach

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Speaker 6: would simply be to say that this court no longer

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Speaker 6: has jurisdiction over most kinds of cases that are subject

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Speaker 6: to Congress's discretion until they enact the following Ethics Code.

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Speaker 6: That's something they could do. The Supreme Court in a

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Speaker 6: case called Cline Hew that Congress may radically restrict their

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Speaker 6: jurisdiction as long as it doesn't attempt to influence the

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Speaker 6: outcome of particular cases. This wouldn't be trying to influence

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Speaker 6: the outcome of particular cases. It would be trying to

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Speaker 6: enforce a standard of ethics. So Congress would be within

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Speaker 6: its rights to do that.

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Speaker 1: Thanks so much for being on the show. I always

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Speaker 1: appreciate your insights. That's Professor David Super of Georgetown Law School.

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Speaker 1: And that's it for this edition of The Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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