WEBVTT - Justice Alito Sparks Another Controversy 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:08.960 --> 0:00:12.160 The Supreme Court is not in session, but that hasn't 0:00:12.200 --> 0:00:17.720 stopped Justice Samuel Alito from creating controversy again. Last summer 0:00:17.800 --> 0:00:20.880 to Galla in Rome, Alito took on foreign leaders for 0:00:21.000 --> 0:00:25.680 criticizing the Court's decision overturning the constitutional right to abortion. 0:00:26.400 --> 0:00:29.720 I had the honor of this term of writing, I 0:00:29.760 --> 0:00:33.199 think the only Supreme Court decision in the history of 0:00:33.240 --> 0:00:37.600 that institution that has been land based by a whole 0:00:37.720 --> 0:00:39.239 string of foreign leaders. 0:00:39.640 --> 0:00:42.920 This summer, in the opinion pages of The Wall Street Journal, 0:00:43.240 --> 0:00:46.760 Alito took on Congress for trying to pass an ethics 0:00:46.800 --> 0:00:50.559 code for the justices, saying Congress has no power to 0:00:50.600 --> 0:00:53.800 regulate the Supreme Court. It wasn't the first time that 0:00:53.840 --> 0:00:57.360 the conservative justice has made such a claim, although it 0:00:57.400 --> 0:00:58.360 didn't attract. 0:00:58.040 --> 0:00:58.880 As much attention. 0:00:59.040 --> 0:01:01.960 In his testimony on the Supreme Court's budget at a 0:01:02.000 --> 0:01:04.679 House hearing in twenty nineteen, we. 0:01:06.160 --> 0:01:10.440 Follow the code of conduct that applies to the lower courts, 0:01:11.360 --> 0:01:15.200 but we don't regard ourselves as being legally bound by it. 0:01:15.400 --> 0:01:19.640 And the reason for that is can be found in 0:01:19.680 --> 0:01:22.880 the structure of Article three of the Constitution, which says 0:01:22.920 --> 0:01:26.920 it's a judicial power shall be revested in one Supreme Court. 0:01:27.160 --> 0:01:31.480 The irony is that, in defending himself against ethics concerns 0:01:31.560 --> 0:01:34.800 over his failure to report a phishing trip to Alaska 0:01:35.080 --> 0:01:37.920 in two thousand and eight paid for by a billionaire 0:01:38.000 --> 0:01:41.360 hedge fund manager whose business came before the court later, 0:01:41.840 --> 0:01:46.800 Alito raised new ethical concerns by commenting on pending legislation 0:01:47.120 --> 0:01:49.680 and giving an interview to a lawyer will be before 0:01:49.720 --> 0:01:51.200 the Court in a major. 0:01:50.960 --> 0:01:52.320 Tax case this term. 0:01:52.880 --> 0:01:56.720 Democrats like Senator Chris Murphy of Connecticut say that Alito 0:01:56.880 --> 0:01:59.680 is making the case for the need for an ethics 0:01:59.720 --> 0:02:01.440 code for the justices. 0:02:01.720 --> 0:02:04.560 And so it is just wrong on the facts to 0:02:04.600 --> 0:02:07.680 say that Congress doesn't have anything to do with the 0:02:07.800 --> 0:02:10.320 rules guiding Supreme Court. In fact, from the very beginning, 0:02:10.560 --> 0:02:12.919 Congress has set those rules. But it is even more 0:02:12.960 --> 0:02:17.160 disturbing that Alito feels the need to insert himself into 0:02:17.200 --> 0:02:18.280 a Congressional debate. 0:02:18.440 --> 0:02:22.000 Joining me is constitutional law expert David super, a professor 0:02:22.040 --> 0:02:27.160 at Georgetown Law School. So Alito said this about Congress, quote, 0:02:27.400 --> 0:02:30.880 no provision in the Constitution gives them the authority to 0:02:31.000 --> 0:02:36.760 regulate the Supreme Court period. What's your take on that interpretation? 0:02:37.720 --> 0:02:41.280 Absurd? He needs to read the Constitution as. 0:02:41.120 --> 0:02:45.480 Far as checks and balances. Is he arguing that there's 0:02:45.600 --> 0:02:48.760 no check on the Supreme Court, but the Supreme Court 0:02:48.919 --> 0:02:51.040 can check the other branches of government. 0:02:51.400 --> 0:02:54.480 That's exactly what he's arguing. For someone who talks a 0:02:54.520 --> 0:02:57.760 great deal about checks and balances, he's proposedly an unchecked 0:02:57.760 --> 0:03:00.440 branch of government. And if this one thing we know 0:03:00.520 --> 0:03:03.280 about the Framers is they did not like unchecked power. 0:03:03.680 --> 0:03:06.919 Democrats have been saying things like, you know, his seat 0:03:07.360 --> 0:03:11.519 is there because Congress expanded the court, and Congress sets 0:03:11.520 --> 0:03:15.240 the Supreme Court's budget and required the High Court to 0:03:15.240 --> 0:03:19.120 hear certain cases classes of disputes. Even the date that 0:03:19.160 --> 0:03:22.800 the Supreme Court term starts was set by Congress and 0:03:22.840 --> 0:03:26.959 the oath the justices take, how is he missing this. 0:03:26.960 --> 0:03:27.560 Part of it? 0:03:27.600 --> 0:03:31.560 And he says that he thinks it's something we the 0:03:31.639 --> 0:03:34.760 other Supreme Court justices have all thought about. 0:03:35.240 --> 0:03:40.000 He has been known to make some very brazen, very 0:03:40.640 --> 0:03:46.000 strange assertions in the past. His defensive Citizens United comes 0:03:46.040 --> 0:03:50.960 to mind, and I think he got his desires way 0:03:50.960 --> 0:03:55.240 out in front of his legal analysis. The Supreme Court's 0:03:55.320 --> 0:04:00.240 jurisdiction on most matters is subject to such regulation and 0:04:00.360 --> 0:04:05.240 exceptions as Congress shall provide. One regulation, obviously, could be 0:04:05.360 --> 0:04:08.280 that they have an ethics code. Congress could cut off 0:04:08.320 --> 0:04:11.960 most of their jurisdiction until such time as they adopt 0:04:12.040 --> 0:04:16.440 an ethics code, or indeed an ethics code prescribed by Congress. 0:04:16.600 --> 0:04:21.560 What Aldo's really commenting on is this legislation that has 0:04:21.640 --> 0:04:24.320 gotten through the Senate Judiciary Committee. 0:04:24.640 --> 0:04:26.719 So it would impose on the Supreme. 0:04:26.279 --> 0:04:31.560 Court new requirements for financial disclosures and for recusals from 0:04:31.640 --> 0:04:34.880 cases in which the Justice may have a conflict of interest. 0:04:35.200 --> 0:04:41.600 So he's commenting on the constitutionality of pending legislation. Is 0:04:41.600 --> 0:04:44.559 that just unusual or is that unethical as well? 0:04:45.200 --> 0:04:51.120 That's probably unethical. He is complaining about Congress intervening in 0:04:51.320 --> 0:04:54.359 the affairs of the Court, and he is intervening in 0:04:54.480 --> 0:04:59.320 the affairs of Congress. Justice Kaken, for example, has recused 0:04:59.320 --> 0:05:04.159 herself from many cases that were simply under discussion when 0:05:04.200 --> 0:05:07.960 she was at the Justice Department, not even clear that 0:05:08.040 --> 0:05:12.400 she was vocal in those discussions, and certainly they weren't public. 0:05:12.800 --> 0:05:16.359 He is now publicly taking a position on legislation that 0:05:16.400 --> 0:05:19.640 he could be asked to either rule on or comply with, 0:05:19.839 --> 0:05:20.279 or both. 0:05:20.920 --> 0:05:24.839 David Rifkin, the lawyer who interviewed Alito for four hours 0:05:25.279 --> 0:05:30.120 and co wrote the opinion piece, is now representing litigants 0:05:30.200 --> 0:05:33.960 before the Supreme Court in a major tax case. And 0:05:34.080 --> 0:05:37.480 Rifkin also wrote a letter to two Democratic senators that 0:05:37.600 --> 0:05:42.000 defended Alito's travel and the activities of Leonard Leo, who's 0:05:42.080 --> 0:05:46.320 a well known conservative activist who led the Federalist Society 0:05:46.320 --> 0:05:50.000 for many years. Is that also unethical or an ethics concern? 0:05:50.760 --> 0:05:53.240 I don't know a single lower court judge that would 0:05:53.240 --> 0:05:59.240 do that. I don't believe there has ever been a 0:05:59.360 --> 0:06:02.240 judge that I've practiced in front of that was willing 0:06:02.279 --> 0:06:06.120 to talk to me about anything outside the presence of 0:06:06.160 --> 0:06:11.279 opposing counsel, except in very, very narrow circumstances where the 0:06:11.360 --> 0:06:15.440 law explicitly allows ex party communication. I ran into a 0:06:15.640 --> 0:06:18.880 judge in a case I was litigating in the eye doctor, 0:06:18.920 --> 0:06:21.200 and he wouldn't talk to me. He wouldn't say hello, 0:06:21.360 --> 0:06:22.280 and I think he was right. 0:06:23.480 --> 0:06:28.919 Well, he says that he's defending himself because quote nobody 0:06:28.960 --> 0:06:29.960 else would. 0:06:30.040 --> 0:06:33.400 But it seems like he's raising more. 0:06:33.560 --> 0:06:37.320 Ethics concerns as he's in the process of defending himself 0:06:37.720 --> 0:06:39.200 against ethic concerns. 0:06:39.680 --> 0:06:43.400 It is a little bit circular and frankly, rather foolish. 0:06:43.880 --> 0:06:46.360 The first thing that a good lawyer does is not 0:06:46.520 --> 0:06:48.000 make the other side's case for it. 0:06:48.880 --> 0:06:53.440 Democratic Senator Chris Murphy said, the Conservative Justices see themselves 0:06:53.480 --> 0:06:56.400 as a second legislative body that has just as much 0:06:56.480 --> 0:06:59.359 power and right to impose their political will on the 0:06:59.440 --> 0:07:02.920 country as Congress does, and it seems that with every 0:07:03.040 --> 0:07:06.599 move Alito is reinforcing that view. 0:07:07.279 --> 0:07:13.880 It certainly does. This is model commentary for the imperial judiciary, 0:07:14.400 --> 0:07:18.240 and we don't have an imperial presidency, we don't have 0:07:18.320 --> 0:07:21.800 an imperial Congress, and there's no indigation that anybody ever 0:07:21.840 --> 0:07:23.600 intended an imperial judiciary. 0:07:23.800 --> 0:07:27.160 The latest uproar about Alito was caused by his private 0:07:27.280 --> 0:07:30.880 jet travel with Paul Singer, whose hedge fund came before 0:07:30.880 --> 0:07:34.240 the court ten times in cases after that trip, and 0:07:34.280 --> 0:07:38.520 it was arranged by the conservative activist Leonard Leo. Is 0:07:38.560 --> 0:07:42.520 that something that Alito should have disclosed on his annual 0:07:42.600 --> 0:07:44.160 financial disclosure forms. 0:07:44.520 --> 0:07:48.320 I think it is, and it certainly is an occasion 0:07:48.400 --> 0:07:51.080 for him to refuse himself. If you look at the 0:07:51.080 --> 0:07:55.200 grounds on which various justices have accused themselves in the past, 0:07:55.640 --> 0:07:59.360 it's for things much much smaller than that. Routinely, the 0:07:59.440 --> 0:08:03.400 principle in judicial ethics is that judges must not just 0:08:03.600 --> 0:08:08.120 avoid impropriety, but avoid the appearance of impropriety. And taking 0:08:08.240 --> 0:08:11.960 extremely valuable trips that any number of people would pay 0:08:12.000 --> 0:08:15.080 a great deal of money for from someone who is 0:08:15.120 --> 0:08:17.920 done litigating in front of the court certainly creeds an 0:08:17.960 --> 0:08:21.080 appearance of impropriety. It's absurd to say that it doesn't. 0:08:21.440 --> 0:08:25.200 When the Supreme Court left for summer recess, they were 0:08:25.240 --> 0:08:29.560 at a stalemate on adopting a formal ethics code for themselves, 0:08:29.560 --> 0:08:33.640 and according to CNN, the Chief Justice has been seeking 0:08:33.840 --> 0:08:36.240 unanimity among the nine justices. 0:08:36.679 --> 0:08:40.360 Should the Chief Justice be doing more than. 0:08:40.200 --> 0:08:43.760 That, he should. We're getting very close to the point 0:08:43.880 --> 0:08:46.440 where the Chief Justice is going to have to choose 0:08:47.080 --> 0:08:50.800 between standing up for ethics and being tired by the 0:08:51.120 --> 0:08:55.640 questionable behavior of his colleagues. If his colleagues won't come around, 0:08:55.720 --> 0:08:57.839 and it's pretty clear that at least two of them 0:08:57.840 --> 0:09:02.319 are very resistant to that, then he must either accommodate 0:09:02.400 --> 0:09:06.960 them and be implicated in their impropriety, or stand up 0:09:06.960 --> 0:09:09.439 to them and take the consequences. 0:09:09.679 --> 0:09:13.480 Well, what are the consequences really with this Congress, which 0:09:13.559 --> 0:09:16.960 is not even likely to pass the ethics code? What 0:09:17.040 --> 0:09:19.439 are the consequences for this court? It seems like there 0:09:19.440 --> 0:09:20.040 are none. 0:09:20.559 --> 0:09:24.880 I'm not sure that the legislation that the Democrats have 0:09:25.000 --> 0:09:29.760 written is ideally drafted, but I think there are a 0:09:29.800 --> 0:09:33.520 lot of Republicans that don't want to be associated with 0:09:33.600 --> 0:09:36.280 this sort of thing either. They would certainly not support 0:09:36.320 --> 0:09:40.800 anything retroactive that would target what Thomas Alito and others 0:09:40.800 --> 0:09:44.319 have already done. But I think it would be possible 0:09:44.440 --> 0:09:48.680 to come up with a code of ethics that would 0:09:48.760 --> 0:09:53.160 get bipartisan support and could get passed through. The Chief 0:09:53.320 --> 0:09:57.720 Justice is concerned with how the public perceives the Court. 0:09:58.240 --> 0:10:01.880 He insists, for example, that they're no democratic or Republican 0:10:02.120 --> 0:10:05.640 justices and has been upset about that the Court is 0:10:05.679 --> 0:10:08.720 going to be perceive not just as ideological, but is 0:10:08.760 --> 0:10:13.040 completely corrupt unless the Chief Justice acts. The fact is 0:10:13.360 --> 0:10:18.240 that five justices can issue an order, so I understand 0:10:18.280 --> 0:10:22.079 why he wants unanimity, but he can tell the holdouts 0:10:22.400 --> 0:10:26.240 that he's got five votes for a code of conduct, 0:10:26.320 --> 0:10:29.840 and he will push it through with or without their support. 0:10:30.520 --> 0:10:36.679 Alito speculates about whether outright defiance of Supreme Court decisions 0:10:36.720 --> 0:10:39.920 by the public may be in the offing quote for 0:10:39.960 --> 0:10:43.160 the first time since the aftermath of Brown v. Board 0:10:43.200 --> 0:10:47.199 of Education, I mean, the Supreme Court doesn't have enforcement powers, 0:10:47.240 --> 0:10:47.520 does it? 0:10:48.000 --> 0:10:52.320 There actually are pretty extensive enforcement powers. The question is 0:10:53.000 --> 0:10:57.520 will the various officials that are charged with enforcing these 0:10:57.720 --> 0:11:00.920 orders regard them as legitimate if they come from a 0:11:01.000 --> 0:11:03.840 court that is perceived to be first to sale to 0:11:03.880 --> 0:11:06.720 the highest bidder. And we haven't reached that point yet, 0:11:06.720 --> 0:11:09.680 but I think we're getting there. During Brown versus Board 0:11:09.720 --> 0:11:14.080 of Education, there was no serious question about the legitimacy 0:11:14.160 --> 0:11:16.960 of the court or the integrity of the court. People 0:11:17.120 --> 0:11:22.160 just vehemently disagreed with the substance of its decisions. Here, however, 0:11:22.360 --> 0:11:27.520 the question is whether this court is acting independently and 0:11:27.600 --> 0:11:30.440 is making fair judgments on the cases that deserve to 0:11:30.480 --> 0:11:37.319 be respected. And the degree to which extraordinarily valuable privileges 0:11:37.400 --> 0:11:44.440 are being bestowed on justices by partisans raises questions about that. 0:11:46.120 --> 0:11:49.640 He also said he seemed to say that you know 0:11:49.760 --> 0:11:50.320 he did. 0:11:50.600 --> 0:11:54.840 He said, wait till second, he voluntarily follows disclosure rules 0:11:55.240 --> 0:11:59.120 that applied to lower court judges and executive branch officials. 0:12:00.080 --> 0:12:02.320 Seemed to indicate that he didn't really have to. It's 0:12:02.360 --> 0:12:04.240 a voluntary thing on his part. 0:12:05.600 --> 0:12:11.240 Well, that's part of his imperial judiciary approach, that no 0:12:11.280 --> 0:12:15.360 one has the ability to check the Supreme Court if 0:12:15.400 --> 0:12:17.079 that's manifestly wrong. 0:12:17.720 --> 0:12:22.080 His take on Justice Thomas, frankly was a little surprising 0:12:22.120 --> 0:12:22.360 to me. 0:12:22.720 --> 0:12:25.439 Basically, he said he doesn't care about president. Quote. 0:12:25.480 --> 0:12:28.480 Justice Thomas gives less weight to starry decisive than a 0:12:28.520 --> 0:12:31.160 lot of other justices, and he says, in a way 0:12:31.200 --> 0:12:35.400 it's a virtue of his jurisprudence. He sticks to his guns. Well, 0:12:35.440 --> 0:12:38.680 if the Supreme Court is not, and we've seen multiple 0:12:38.679 --> 0:12:42.400 instances in recent years, if they're not going to give 0:12:42.480 --> 0:12:45.960 weight to precedent, then what do they. 0:12:45.880 --> 0:12:46.440 Give weight to. 0:12:47.240 --> 0:12:50.800 Well, I think Justice Alido and Justice Thomas would say 0:12:51.360 --> 0:12:55.200 they give weight to an original interpretation of the Constitution, 0:12:55.600 --> 0:13:01.920 and that the original public meaning of the framers of 0:13:02.160 --> 0:13:06.800 the various parts of the Constitution is what Haro's legitimacy, 0:13:06.920 --> 0:13:10.600 not the decisions of the Supreme Court. If they were 0:13:10.640 --> 0:13:14.040 faithful in following that original public meaning. There might be 0:13:14.120 --> 0:13:18.679 some credibility to that that. As Justice Jackson showed in 0:13:18.840 --> 0:13:26.040 the affirmative action cases, the originalist meaning is only getting 0:13:26.120 --> 0:13:30.160 carted out when it serves their particular ideological agenda. 0:13:30.440 --> 0:13:33.320 Well, it always makes me laugh when laugh or cry. 0:13:33.360 --> 0:13:37.360 Perhaps when you look back at the confirmation hearings for 0:13:37.440 --> 0:13:41.120 Supreme Court justice and they all, every single one talk 0:13:41.160 --> 0:13:43.000 about respecting precedent. 0:13:43.360 --> 0:13:44.319 I don't know how they can do it with a 0:13:44.360 --> 0:13:45.080 straight face. 0:13:46.440 --> 0:13:51.679 Some of them probably think that when they're a nominee 0:13:52.120 --> 0:13:55.720 and get drunk with power when they're on the court, 0:13:56.200 --> 0:13:58.599 which is all the more reason that the Court. 0:13:58.320 --> 0:14:02.360 Should not be above Obviously, if they can't get this 0:14:02.679 --> 0:14:05.439 ethics code pass, it's not going to happen with this Congress. 0:14:05.640 --> 0:14:09.080 But would you be in favor of packing the court? 0:14:09.559 --> 0:14:14.800 No, I think that effectively wrecks the court. These ethics 0:14:14.840 --> 0:14:17.839 violations may do the same thing. But I think the 0:14:17.920 --> 0:14:23.160 cutry deeps a viable Supreme Court, and I would favor 0:14:24.160 --> 0:14:26.720 taking steps to make sure that it has. I would 0:14:26.720 --> 0:14:33.040 absolutely favor changing the nomination and confirmation process so that 0:14:33.120 --> 0:14:37.000 we don't get political extremists on the court, and so 0:14:37.040 --> 0:14:42.160 that justices need to have a much broader level of 0:14:42.200 --> 0:14:47.040 respect and approval than just the coalition of the President 0:14:47.120 --> 0:14:51.080 and the Senate majority. But packing the court would cause 0:14:51.120 --> 0:14:54.680 everyone to regard it as a largely worthless body. 0:14:55.320 --> 0:14:57.560 What about term limits for the justices? 0:14:58.840 --> 0:15:03.080 Certainly not nearly troubling is packing it. But I actually 0:15:03.120 --> 0:15:06.360 did a study of what would happen if we had 0:15:06.360 --> 0:15:09.760 had term limits in the past, and the answer is 0:15:09.800 --> 0:15:13.680 not very pretty. What you would end up having is 0:15:13.760 --> 0:15:18.800 a court that reflects current political passions much more. Some 0:15:18.880 --> 0:15:21.840 of the great moderating influences on the Court have been 0:15:22.320 --> 0:15:27.400 justices that were nominated and confirmed in a prior period. 0:15:27.960 --> 0:15:32.200 Justice Stevens was regarded as a conservative when President Ford 0:15:32.240 --> 0:15:35.120 put him on the court, but events changed and he 0:15:35.240 --> 0:15:38.760 ended up being a major moderating force just as Suitor, 0:15:38.880 --> 0:15:42.080 very much the same way, just as White, not that 0:15:42.200 --> 0:15:45.119 I was a big fan of it, but was regarded 0:15:45.200 --> 0:15:49.040 as a liberal pick when he was put on and 0:15:49.320 --> 0:15:54.280 became a swing vote a moderating conservative voice as time 0:15:54.320 --> 0:15:58.760 went on. If you make sure that all the justices 0:15:59.320 --> 0:16:03.360 were met didn't confirm within the last eighteen years, then 0:16:03.440 --> 0:16:07.800 you mostly have justices that are partisans to the contemporary 0:16:07.800 --> 0:16:08.720 political battles. 0:16:08.840 --> 0:16:10.560 Leto said, you know, no one else is going to 0:16:10.600 --> 0:16:14.360 defend him. Do you think that Supreme Court justices should 0:16:14.520 --> 0:16:17.600 be allowed to defend themselves in this way? From you know, 0:16:17.720 --> 0:16:19.000 public outcry. 0:16:20.440 --> 0:16:24.720 Much of the country was filled with impeach Earl Warren 0:16:25.160 --> 0:16:30.720 billboards throughout the nineteen sixties. An Eeral Warren was not 0:16:30.800 --> 0:16:35.480 giving public speeches defending himself. Other people defended him, but 0:16:36.000 --> 0:16:39.600 he believed it was improper to defend himself even against 0:16:39.680 --> 0:16:44.720 the most aggressive personal attacks of the kind that neither 0:16:45.440 --> 0:16:49.520 Justice Leado nor Justice Thomas have faced. It's simply not 0:16:49.560 --> 0:16:52.080 true that no one else will defend them. The whole 0:16:52.160 --> 0:16:55.760 point of this problem is that they are closely intertwined 0:16:55.840 --> 0:17:00.480 with a right wing machine determined to pack and dominate 0:17:00.520 --> 0:17:03.320 the court, and the other members of that machine are 0:17:03.320 --> 0:17:04.959 more than happy to defend them. 0:17:05.640 --> 0:17:09.280 So when this tax case comes before the court with 0:17:09.440 --> 0:17:13.680 Rifkin as one of the lawyers, it seems pretty obvious 0:17:13.800 --> 0:17:16.800 that Alito should recuse himself. 0:17:17.440 --> 0:17:20.520 Yes, but if he doesn't, nothing could be done. 0:17:20.840 --> 0:17:26.400 There's no good way to force that to happen. There 0:17:26.520 --> 0:17:30.240 is a little bit of a precedent in that the 0:17:30.320 --> 0:17:34.679 other eight justices concluded at one point that Justice Douglas 0:17:35.280 --> 0:17:39.040 was not sufficiently confident that he should be casting deciding 0:17:39.119 --> 0:17:42.879 votes and cases, and so they agreed towards the end 0:17:42.960 --> 0:17:45.840 of his time on the Court that they would set 0:17:45.880 --> 0:17:49.119 over for reargument the next year any case in which 0:17:49.480 --> 0:17:53.760 Justice Douglas's vote was decisive. The other justices could simply 0:17:53.840 --> 0:17:58.679 decide that they will not vote for a resolution in 0:17:58.720 --> 0:18:02.800 which Justice leaders vote is decisive if he is conflicted, 0:18:02.960 --> 0:18:06.280 or any other justice his vote as decisive if they 0:18:06.320 --> 0:18:07.000 are conflicted. 0:18:07.440 --> 0:18:10.600 I can't imagine this Court doing that. I guess we'll see. 0:18:10.720 --> 0:18:14.320 It really depends on how they feel about their place 0:18:14.359 --> 0:18:17.680 and history, how they feel about their place in American society, 0:18:17.680 --> 0:18:21.520 in American government. This sort of corruption lends a very 0:18:21.560 --> 0:18:24.280 bad odor to the whole court. It would be nice 0:18:24.320 --> 0:18:28.680 to think that some of these justices feel strongly enough 0:18:28.720 --> 0:18:32.520 about integrity and about how they're regarded that they would 0:18:32.560 --> 0:18:38.160 be willing to force their colleagues to improve their ethical standards, 0:18:38.440 --> 0:18:41.080 even if those are colleagues that they mostly agree with. 0:18:41.520 --> 0:18:44.760 Is there anything else that Congress can do if this 0:18:45.280 --> 0:18:48.600 ethics code fails, as it's likely to as it's done before. 0:18:49.000 --> 0:18:54.040 One thing we haven't talked about is that Congress, under 0:18:54.080 --> 0:18:59.560 the Constitution has exclusive legislative authority over the District of Columbia. 0:18:59.840 --> 0:19:02.480 It has passed a lot of that to the DC 0:19:02.680 --> 0:19:05.200 City Council that it can legislate over at DC all 0:19:05.240 --> 0:19:10.160 at once. And Congress could very easily pass a statute 0:19:10.800 --> 0:19:14.359 on judicial ethics for all judges in the District of 0:19:14.400 --> 0:19:19.960 Columbia that includes disclosure requirements for ucial requirements, and that 0:19:20.160 --> 0:19:27.840 criminalizes making gifts to any judge while one has matters 0:19:27.840 --> 0:19:31.200 that may come before that judge, And if it applies 0:19:31.240 --> 0:19:33.800 to all judges in the District of Columbia, would apply 0:19:33.880 --> 0:19:34.640 to the nine of them. 0:19:35.000 --> 0:19:38.200 Also, what about I mean Congress controls the budget. Could 0:19:38.320 --> 0:19:41.840 Congress cut the budget or hold the budget up? 0:19:42.480 --> 0:19:47.640 They can't defund the justices salaries. In theory, I suppose 0:19:47.680 --> 0:19:51.080 they could shut down much to the rest of the court, 0:19:51.240 --> 0:19:54.439 make them lay off their clerks and so on. I 0:19:54.520 --> 0:19:57.399 don't see much point to that when the simpler approach 0:19:57.440 --> 0:20:01.359 would simply be to say that this court no longer 0:20:01.400 --> 0:20:05.600 has jurisdiction over most kinds of cases that are subject 0:20:05.600 --> 0:20:10.960 to Congress's discretion until they enact the following Ethics Code. 0:20:11.240 --> 0:20:14.159 That's something they could do. The Supreme Court in a 0:20:14.200 --> 0:20:19.280 case called Cline Hew that Congress may radically restrict their 0:20:19.400 --> 0:20:22.760 jurisdiction as long as it doesn't attempt to influence the 0:20:22.840 --> 0:20:26.520 outcome of particular cases. This wouldn't be trying to influence 0:20:26.520 --> 0:20:29.080 the outcome of particular cases. It would be trying to 0:20:29.160 --> 0:20:32.960 enforce a standard of ethics. So Congress would be within 0:20:33.000 --> 0:20:33.960 its rights to do that. 0:20:34.600 --> 0:20:37.000 Thanks so much for being on the show. I always 0:20:37.040 --> 0:20:41.880 appreciate your insights. That's Professor David Super of Georgetown Law School. 0:20:42.080 --> 0:20:44.399 And that's it for this edition of The Bloomberg Law Show. 0:20:44.720 --> 0:20:47.119 Remember you can always get the latest legal news on 0:20:47.119 --> 0:20:51.400 our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 0:20:51.600 --> 0:20:57.200 and at www dot Bloomberg dot com, slash podcast, Slash Law, and. 0:20:57.200 --> 0:20:59.000 Remember to tune into The Bloomberg. 0:20:58.640 --> 0:21:02.040 Law Show every week at ten pm Wall Street Time. 0:21:02.600 --> 0:21:05.280 I'm June Grosso, and you're listening to Bloomberg