Justice Alito speech leads to rare court-Congress dialogue

Whitehouse calls Alito's behavior ‘defensive,’ says it demonstrates partisan motive

Justices of the U.S. Supreme Court including (L-R) Associate Justices Sonia Sotomayor, Stephen Breyer, Elena Kagan, Neil Gorsuch, Clarence Thomas, Chief Justice John Roberts, Associate Justice Brett Kavanaugh, former Associate Justice Anthony Kennedy and Associate Justice Samuel Alito await the arrival of the casket of former U.S. President George H.W. Bush inside the U.S. Capitol Rotunda on December 3, 2018. REUTERS/Jonathan Ernst/Pool (REUTERS)
Justices of the U.S. Supreme Court including (L-R) Associate Justices Sonia Sotomayor, Stephen Breyer, Elena Kagan, Neil Gorsuch, Clarence Thomas, Chief Justice John Roberts, Associate Justice Brett Kavanaugh, former Associate Justice Anthony Kennedy and Associate Justice Samuel Alito await the arrival of the casket of former U.S. President George H.W. Bush inside the U.S. Capitol Rotunda on December 3, 2018. REUTERS/Jonathan Ernst/Pool (REUTERS)
Posted November 13, 2020 at 3:12pm

Amid a partisan fight about whether the Supreme Court is too political or needs to be overhauled, Justice Samuel A. Alito Jr. stepped into the ring Thursday night to throw a few punches at members of Congress.

The conservative justice’s rare public criticism of lawmakers drew rebukes from some court watchers for crossing too far into politics for a judge. It comes as run-off elections for two Senate seats in Georgia will determine whether Democrats will control the chamber, and maybe try to advance proposals to change the number of justices or how they are appointed and serve.

As part of a more wide-ranging speech, Alito targeted Sen. Sheldon Whitehouse of Rhode Island and four other Democratic senators who filed a brief in a gun rights case at the Supreme Court last year that raised concerns about the influence political contributions have on the Supreme Court’s docket and decisions.

Alito launched the criticism in front of a friendly audience, a video recording for the annual meeting of The Federalist Society. That group of conservative and libertarian lawyers has been at the heart of the Democratic senators’ criticism for its role in judicial confirmation fights and briefs filed in high-profile cases at the court.

Alito said the senators had inappropriately made threats to influence the court’s actions.

“I could say something about standards of professional conduct,” Alito said, “but the brief involved something even more important. It was an affront to the Constitution and the rule of law.”

A justice interjecting himself into a political debate about the court used to be more common, but is unusual by today’s standards. One Supreme Court watchdog called it “at odds with basic ethical standards.”

Whitehouse weighs in

This time, Alito’s comments in the speech about religious liberty got a huge boost when President Donald Trump tweeted a right-wing news story about them. And the speech prompted a rare public political dialogue between Congress and the Court.

Whitehouse on Friday said the “defensive” behavior from Alito seems to confirm that there is motive behind partisan Supreme Court decisions, “not just dispassionate adjudication.” And he said the court’s inaction in addressing issues the senators raised in the brief is “unfortunate, and perhaps also telling.”

“I’m glad the Justices are listening, but wish they would take friendly warnings about mistakes they have made less defensively, and focus on repairing their errors,” Whitehouse told CQ Roll Call through a spokesman.

Democrats have floated proposals to change the structure of the Supreme Court in response to its 6-3 conservative tilt after bruising confirmation fights for Trump’s three appointees.

Georgia Democratic candidates Raphael Warnock and Jon Ossoff face Republican incumbents Kelly Loeffler and David Perdue, respectively, in special election runoffs set for Jan. 5. If the Democrats win both races, their party will control the Senate.

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Alito’s point

Alito’s main point Thursday centered on what he saw as bullying the court into deciding cases based not on the law, but on threats from lawmakers of what might happen if the decision did not go their preferred way.

And he focused on the brief from Whitehouse and Sens. Richard Blumenthal of Connecticut, Mazie K. Hirono of Hawaii, Richard J. Durbin of Illinois and Kirsten Gillibrand of New York.

Alito said those senators, who urged the Supreme Court not to decide a Second Amendment case about a New York gun law that was defunct, “wrote that the Supreme Court is a sick institution. And if the court did not mend its ways, well, it might have to be quote, restructured.”

The Supreme Court ultimately decided the case was moot and made no substantive ruling on the gun rights issue. Alito said he’s not suggesting the decision was “influenced by the senators’ threat,” but that he’s worried it might be viewed that way “by the senators and others with thoughts of bullying the court.”

“This little episode, I’m afraid, may provide a foretaste of what the Supreme Court will face in the future, and therefore I don’t think it can simply be brushed aside,” Alito said.

Congress has no right to interfere with the court’s work just as the justices don’t have the right to legislate, Alito said, and the court is obligated “to decide cases based on the law, period.”

“And it is therefore wrong for anybody, including members of Congress, to try to influence our decisions by anything other than legal argumentation,” Alito said. “That sort of thing has often happened in countries governed by power not law.”

Alito compared it to a story from a Supreme Court justice from a different country, who said a tank pointed its gun at the court and the message was clear: “Decide the right way, or the courthouse might be, shall we say, restructured.”

“That was a crude threat. But all threats and inducements are intolerable,” Alito said.

Institutional interests

Josh Chafetz, a Georgetown University Law Center professor who wrote a book on legislative authority and separation of powers, said he doesn’t have a problem with judges criticizing lawmakers but Alito is “being absurd” in a way that is typical of judges on both sides of the aisle.

“Judges have an institutional interest in trying to delegitimize anything that might decrease judicial independence, meaning their freedom to act as they see fit,” Chafetz said. “But there’s no reason that other political actors should buy into that sort of self-serving argument.”

Gabe Roth, the executive director of the nonpartisan group Fix the Court, which advocates for accountability and transparency, said members of Congress “have every right to assert their own understandings of the law, whether from the House or Senate floor or in amicus briefs.”

“Justice Alito knows this but injudiciously — and at odds with basic ethical standards — chose to utter a cheap applause line by denigrating some Democratic senators,” Roth said. “Maybe the speech was a prelude to his announcement for a Senate run in Pennsylvania, where his former appeals court was based.”

Whitehouse also said that Alito got something wrong in the speech. The senators’ brief only used the word “restructured” in quotes as part of a Quinnipiac Poll question — not from the senators themselves — that found a majority of Americans believe the “Supreme Court should be restructured in order to reduce the influence of politics.”

“First, the Justice misstated our brief; not good practice for a judge,” Whitehouse said. “Second, if it is wrong to seek to influence the Court outside of ‘legal argumentation,’ perhaps he can explain the massive dark-money influence effort surrounding the Court chronicled in our well-documented ‘Captured Courts’ report, and the 80 5-4 partisan decisions by the Court giving victories to the interests likely behind that influence campaign.”