MITCHELL: What Dick Durbin And Ted Lieu Get Wrong About Congress And The Supreme Court

 On July 28, 2023, conservative U.S. Supreme Court Justice Samuel Alito told the Washington Post in an interview that Congress did not have the power to regulate the Supreme Court on ethics or on most other internal matters. 

The same day, Congressman Ted Lieu tweeted: “Dear Justice Alito: You’re on the Supreme Court in part because Congress expanded the Court to 9 Justices. Congress can impeach Justices and can in many cases strip the Court of jurisdiction. Congress has always regulated you and will continue to do so. You are not above the law.” Senate Judiciary Chairman and Illinois Sen. Richard Durbin echoed Lieu’s sentiments in a statement saying, “Let’s be clear: Justice Alito is not the 101st member of the United States Senate. His intervention in Article I activity is unwise and unwelcome.”

Well, Ted Lieu is not a stupid man. He has a Georgetown Law Degree and likely knows his basic constitutional law. I believe he does. The problem isn’t Lieu’s lack of intelligence. He’s got plenty of intelligence. The problem is that he seems to be towing a party line for political purposes. Durbin, meanwhile, appears to have confused congressional oversight with the ability to control the Supreme Court. Congress’ powers over the court are limited and set out in the Constitution.  

The only power Congress has over the Supreme Court is to give advice and consent to the president when selecting Supreme Court Justices, as seen in Article II Sec. 2.2 of the Constitution. Congress can also impeach justices for serious violations such as treason, bribery, or other high crimes and misdemeanors, as seen in Article I Sec. 2.5. The Senate decides whether to convict the justice or remove him/her from office, just as with the president. Article III, Sec. 1 of the Constitution which reads, “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” gives Congress the power to expand or contract the number of justices.

Congress has power to control the Supreme Court in the context of the rules provided for in the Constitution and what can be reasonably interpreted from them. Anything that is outside the Constitution is made up and an overreach of legislative power. Nowhere is there a provision allowing Congress to tell the court what is ethical and what is not ethical.

If Congress is allowed to create an ethics code for the court and those rules are challenged by someone whom they affect, the affected party can then litigate them up to the Supreme Court. If the matter comes before the court, the court could theoretically deem the code unconstitutional. The court is the final arbiter on federal law, making the entire argument to some extent a circular, pointless one. At the end of the day, only the Supreme Court can determine how it conducts its own business. 

The Constitution establishes three co-equal branches of government each independent of the other – the separation of powers. If either house of Congress can control the Supreme Court’s operation, that would be a violation of the separation of powers, since the judicial branch would not be co-equal with the legislative branch.