Claiming the Supreme Court is insulated from regulation sets a dangerous precedent. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ 
Brennan Center for Justice The Briefing
Last week, Justice Samuel Alito returned to a favored forum — the Wall Street Journal op-ed page. For decades, the page has been an invigorating mix of insightful essays, right-wing boilerplate, and occasional conspiracy theories. This morning’s headlines include “Climate Change Obsession Is a Real Mental Disorder” and “FDR Made the Depression Great Again.” Now the Journal appears to be hosting a new genre: historical fiction.
In an interview, Alito declared, “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.” The mix of self-congratulation and tendentiousness was distinctly Alito’s, familiar to anyone who read the Dobbs ruling.
This “controversial view” is wrong as history and law. It also marks a startling intervention by a justice in an ongoing legislative fight. Alito spoke soon after the Senate Judiciary Committee advanced legislation that would require the Court to adopt a binding code of ethics, while imposing stricter rules for recusal and disclosures for gifts and travel. Were such a law to pass, surely it would wind up at the justice’s desk.
Alito’s pronouncement ignores the long history of congressional regulation of the Supreme Court.
Over the years, Congress has expanded (and shrunk) the size of the Court and changed its jurisdiction. As my colleague Martha Kinsella recently pointed out, Congress has had a hand in overseeing the justices’ ethical conduct since the time of the founding. Congress wrote the first mandatory oath for Supreme Court justices in 1789. It set recusal rules for the justices in 1948 and financial and income disclosure rules in 1978. Just last year, a bipartisan group of lawmakers increased transparency requirements around the justices’ securities transactions.
Yes, judicial independence must be respected. Checks and balances matter. But Congress regulates ethics in the executive branch, for example — another distinct branch. And both federal prosecutors and judges appropriately police congressional misconduct. (Just ask recently indicted Rep. George Santos of New York.) Ethics legislation upholds basic checks and balances. And it reflects a core insight: nobody is so wise that they should be the judge in their own case.
Plainly, the Court needs reform. Public trust in the institution has collapsed to the lowest level ever recorded in polls. The justices work in a swirl of secret billionaire backers, unacknowledged conflicts of interest, eye-popping book deals, and a lavishly funded Federalist Society political machine that has driven the Court’s lurch to the right.
A mandatory ethics code should be just a first modest step. There is wide and bipartisan support for another idea: 18-year term limits for the justices. Nobody should have that much public power for too long. Alito’s glib insistence that Congress should butt out shows the risk of an unaccountable institution.
Over the years, as the Supreme Court’s power has grown, it has evolved from upholding judicial review to what critics from left and right have variously decried as judicial imperialism. Alito has added a new twist: judicial chutzpah.

 
Trump’s Potential Indictment and the Truth About Voting
Donald Trump’s January 2, 2021, call to Georgia Secretary of State Brad Raffensperger is now a key piece of evidence in the criminal investigations into the former president’s efforts to overturn the 2020 election. During the call, Trump made several false claims of widespread voter fraud that continue to damage our democracy. A new Brennan Center resource fact-checks those statements, including oft-repeated falsehoods about voter impersonation, corrupt voting machines, and improper ballot counting. Read more
A Test of Prosecutorial Discretion
This fall, the Pennsylvania Supreme Court will consider whether state lawmakers can impeach Philadelphia District Attorney Larry Krasner for pursuing various criminal justice reform policies. The GOP legislators’ bid to remove the DA is the latest in a series of nationwide attacks on prosecutors who are working to curb the excesses of the criminal justice system. As Rosemary Nidiry and Ames Grawert write, if the high court deems the impeachment effort to be unconstitutional, “it will be a powerful confirmation of Krasner’s right to shape Philadelphia’s criminal justice system to accord with his — and voters’ — sense of justice.” READ MORE
A Brazen Attack on Direct Democracy in Ohio
Continuing an alarming national trend, conservative lawmakers in Ohio are working to restrict citizen ballot initiatives, which have historically allowed voters to bypass gerrymandered legislatures and achieve popular policy goals. In a special election on August 8 — a time when turnout is notoriously low — Ohioans will vote on a proposed constitutional amendment that would make it much harder to introduce and pass such ballot initiatives. The move not only threatens direct democracy in the state but also appears aimed at heading off future ballot measures protecting abortion and voting rights. Rejecting this amendment is crucial, as its impact will echo far beyond Ohio, Alice Clapman and Yurij Rudensky write in Newsweek. Read more
Protecting Scientific Integrity
Last week, a bipartisan group of House lawmakers introduced the Scientific Integrity Act, which aims to strengthen evidence-based policymaking. The legislation comes after the Covid-19 pandemic underlined the consequences of politicizing science in government decision-making. “Legal safeguards are needed to ensure that senior government officials do not manipulate data or censor the experts who advise them to justify politically expedient policy outcomes,” Martha Kinsella writes. Read more
The Global Race to Regulate AI
As artificial intelligence advances rapidly, Congress is scrambling to create rules and regulations to harness its potential while ensuring safety and transparency. Though the U.S. legislative framework is still taking shape, the European Union is well on its way to developing robust regulations around AI. Faiza Patel and Ivey Dyson examine the approaches to AI regulation in each region and the legal questions that remain unanswered. Read more
Supreme Court Diversity Throughout History
Presidents have long taken geographic, racial, religious, and gender diversity into account when choosing their Supreme Court nominees. Starting with the Court’s original justices, our new explainer walks through the appointments that have made history and created a more representative high court over time. READ MORE

 
News
  • Kareem Crayton on pending redistricting litigation // ROLL CALL
  • Douglas Keith on efforts to fill state supreme courts with conservatives // CENTER FOR PUBLIC INTEGRITY
  • Sean Morales-Doyle on Trump’s potential indictment for election subversion // POLITIFACT
  • Lawrence Norden on pay raises for poll workers // USA TODAY

 
 
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