The Supreme Court has been mired in controversy since the spring, in the wake of reports that Justices Clarence Thomas and Samuel Alito have accepted lavish gifts from billionaire Republican donors. Many people have called on the court to establish an ethics code to help prevent such situations in the future—which the justices have resisted.
But “it just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial,” Kagan said Thursday at a judicial conference. “Can Congress do various things to regulate the Supreme Court? I think the answer is: yes.”
It’s hard to see Kagan’s comment as anything other than a direct response to her fellow justice Samuel Alito, although she said it was not. Alito recently said Congress should back off from trying to regulate the court.
“I know this is a controversial view, but I’m willing to say it,” he said in an interview with The Wall Street Journal. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
This is untrue, as Section III of the Constitution explicitly says that Congress can determine how to organize the court, and Kagan stated as much. “Of course, Congress can regulate various aspects of what the Supreme Court does,” she said. “Congress funds the Supreme Court. Congress historically has made changes to the court’s structure and composition. Congress has made changes to the court’s appellate jurisdiction.”
Chief Justice John Roberts has also begged Congress to stay out of the court’s business—but that may be because he has since come under fire for shady behavior too, albeit of a much less brazen variety than his colleagues Thomas and Alito. His wife, Jane Roberts, has allegedly been paid more than $10 million by multiple law firms—at least one of which argued a case before her husband, after it had already paid her hundreds of thousands of dollars.
Thomas has for years accepted hundreds of thousands of dollars’ worth of gifts from GOP megadonor Harlan Crow, in the form of island-hopping yacht vacations. The Nazi memorabilia collector also paid for Thomas’s nephew’s tuition, and he bought a Thomas family property, where Thomas’s mother still lives.
Thomas also has repeatedly refused to recuse himself from cases that relate to the January 6 riot—despite the fact that his wife, Ginni Thomas, is a major right-wing activist who encouraged then–chief of staff Mark Meadows to overturn the election.
Alito accepted a luxury vacation from a billionaire Republican megadonor as well. Right-wing activist (and then–head of the Federalist Society) Leonard Leo helped organize the trip, and also attended.
And the scrutiny is not limited to the conservative justices: Justice Sonia Sotomayor is under fire after the Associated Press reported that her staffers pressured institutions where she was scheduled to speak to buy hundreds, even thousands, of copies of her books.
Congress finally made a move to rein in the court two weeks ago, when the Senate Judiciary Committee advanced a bill that would require the justices to adopt a code of ethics. The measure would create rigorous new financial disclosure rules, as well as establish a process for submitting and investigating ethics complaints against the justices.
The bill will have a hard time passing the Senate, though, where Democrats have a razor-thin majority. It is unlikely to pass the House at all because the chamber is controlled by Republicans, who have accused the left of trying to “delegitimize” the Supreme Court (although the court seems to be doing that just fine on its own).