Sorry, Justice Alito: Congress has the power to regulate the Supreme Court

Congress must enact two important structural reforms to save the Supreme Court from itself. The recent collapse in the public confidence in the court impels legislative action.

Justice Samuel Alito and his acolytes have joined other justices to invoke a supposed shield against any such congressional action, asserting that it would run afoul of the constitutional “separation of powers.” That argument is as dangerous as it is specious.

Various recent surveys have demonstrated that confidence in the Supreme Court is at an all-time low, even when compared with earlier periods of public dissatisfaction with particular decisions or patterns of decisions. Moreover, for the first time, a vast percentage of the American public doubts the integrity of the justices, not just the soundness of their particular decisions. 

The first structural reforms would require that the justices either adopt a clear, transparent, rigorous and enforceable code of conduct or have one fashioned by Congress. That need has become apparent in light of the drumbeat of disclosures about the ethically challenged behavior of virtually every one of the sitting justices. The Senate is trying to move forward with at least a first step along these lines.

The other structural reform would address a more subtle but more important problem: The process for selecting justices has generated what I call the “Court of Nobodies.” Justices now arrive at the Supreme Court, unlike in the first two centuries of American history, with no particular stature or distinction of the sort that gave the public reason to trust their judgment and independence. Instead, the process of screening only the most extreme, careerist judges from federal appellate courts has yielded a bitterly divided court rightly seen as selected purely for ideological predictability.

To reverse this unsavory and destructive pattern, Congress should adopt legislation that would reintroduce diversity of experience, background and stature into the selection process. To be eligible for nomination to fill future Supreme Court vacancies, candidates must be selected from sources other than sitting federal judgeships — including other forms of public service, private law practice or academic achievement.

When I recently proposed this kind of legislation, one constitutional scholar suggested that such a restriction would violate the separation of powers doctrines and the constitutional process by which the president allegedly has a completely free hand to nominate anyone he wants, and the Senate alone has discretion whether to acquiesce.

But both the text of the Constitution and the common sense of the Framers demonstrate why Congress has ample authority to enact legislation that regulates eligibility for appointment to the Supreme Court and the nonjudicial behavior of the justices.

The term “separation of powers” appears nowhere in the Constitution. It is no magical talisman that provides justices (or other federal judges) with a cloak shielding them from statutory duties and prohibitions. Rather, the phrase simply reflects that, in an interconnected process of government, Congress makes the laws (Article I), the executive branch implements the laws (Article II), and the judicial branch decides disputes under the laws (Article III).

For present purposes, all this concept does is to bar Congress from telling the Supreme Court how to decide particular cases. This limited insulation of the judicial function leaves plenty of room for Congress to legislate over the conduct of justices off the bench, as it long had done in requiring financial disclosures of outside interests, even of the justices, and defining acceptable standards of behavior for lower court judges, who, like the justices, exercise Article III powers.

Article I of the Constitution expressly gives Congress broad power to deal with the other branches, including the Supreme Court, entrusting to it authority to “make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof [emphasis added].”

This legislative authority extends even to the justices’ performance of their core judicial function. From the earliest days, Congress has determined how many justices there will be, when they must convene, and what oath they must swear. Accepting a bribe to decide a particular case is a felony under federal law, and no one would claim that the separation of powers immunizes a justice from prosecution for corruptly exercising judicial office. It is hard to imagine any reason why the Framers intended to prevent Congress from creating prophylactic standards to avoid even the appearance of impropriety until a justice actually sells a vote. 

For similar reasons, neither the separation of powers concept nor the specific constitutional process for nominating and confirming justices precludes Congress from establishing binding standards of eligibility. The Constitution does not speak about appointment of justices uniquely; rather, it lumps them in among the various categories of judicial and executive branch employees whom the president may nominate and, with the advice and consent of the Senate, appoint.

Although the Constitution itself does not define any standards of eligibility for any of these offices, there is no serious argument that the Framers would have prohibited Congress as a whole from deciding, for example, that a blood relative of the president would be ineligible to serve as attorney general, or that only graduates of a military academy would be eligible for promotion to serve as commanding generals of an army division, or that only accredited members of the bar would be eligible for appointment as assistant attorneys general in the Justice Department.

The Framers were classically trained men. They no doubt were familiar with the notorious story (whether true or not) that Caligula considered naming his beloved horse as a consul of Rome. They also were aware that a deluded or reckless president might occupy the highest executive office and control a pliant Senate. The Framers surely did not intend that Congress would lack the power to enact wise and general prospective standards for eligibility for high office in order to guard against abuses of the moment.

Against this backdrop, it is well within the proper legislative function for Congress not only to establish standards for the nonjudicial behavior of sitting Supreme Court justices but also to define the contours of the pool of eligible candidates from whom future nominees should be drawn. Congress should not shirk the obligation to act by hiding behind an illusory constitutional fig leaf.

Philip Allen Lacovara is the former deputy solicitor general of the United States, counsel to the Watergate Special Prosecutor, and president of the District of Columbia Bar.