Tag: Samuel Alito

Wheeler on the limits of regulating the Supreme Court

Russell Wheeler of the Brookings Institute has posted an astute article about the Alito flag kerfuffle and the resulting cries for his recusal from two pending January 6-related cases. Wheeler sets out why the concepts of recusal and  judicial misconduct, at least with respect to the Supreme Court, are more legally complicated than Alito’s accusers would like.

There is a much deeper story here about why the Supreme Court has been so resistant to self-policing, especially since incidents like this one (and recent revelations about Justice Thomas’s gifted trips) would seem to erode public confidence in the Court. It is a complicated story worthy of a larger post, but I will note as a placeholder that in the Court’s calculus, a public commitment to specific recusal standards would likely reduce its legitimacy by inviting antagonists to turn recusal into an even more prominent political game. I will offer a more extensive explanation in a forthcoming post.

What should we expect when Justices Alito and Kagan testify before Congress this week?

Political theater, to be sure — but of the potentially useful variety.

U.S. Supreme Court Justices Samuel Alito and Elena Kagan will reportedly testify before the House Appropriations Subcommittee on financial services and general government on March 7, to discuss the Court’s annual budget request. It will be the first public hearing on the Court’s budget since 2015; over the last several years, Justices have met privately with Congressional leaders.

The tradition of federal judges (including Supreme Court Justices) testifying before Congress dates back at least to the 1920s, when then-Chief Justice Taft and selected colleagues repeatedly appeared before Congress to discuss pending legislation affecting the courts. But that was in an era before television cameras and Twitter. The purpose and meaning of such hearings has long changed, and the presence of Justices, sans robes, at the witness table is sufficiently unusual these days as to attract quite a bit of attention.

Even though the scheduled testimony is technically about the Court’s budget, everyone seems to understand that financial minutiae will only be a small part of the discussion. Subcommittee members are likely to use the rare opportunity for direct interaction with the Justices to broach a variety of unrelated subjects, including an ethics code for the Supreme Court, the introduction of courtroom cameras, and the federal court system’s new workplace conduct policies.

The hearing itself is unlikely to break any new ground. The Justices have a strong tradition of circling the wagons on their internal matters, and Justice Kagan in particular has a smooth temperament that helps her avoid stepping into controversy. (She did manage to effectively wrangle the Harvard Law faculty for several years, after all.) Alito and Kagan both understand the nature of the production, as well as the ultimate goal: to get out unscathed.

To the extent Congress and the courts need to coordinate on important issues, one can only hope that they are doing so behind the scenes. The courts have been understandably cautious about communicating directly with Congress on matters of legal interpretation, given separation of powers concerns. But administrative issues are a different animal altogether, and there is ample space for the courts to work with Congress on funding and operational issues which are of important interest to both branches.

Still, while Thursday’s hearing may not produce much that is immediately newsworthy, it is still an important exercise. The Supreme Court has been famously reticent to align many of its practices with modern public expectations, from failing to adopt an ethics code to rejecting calls for courtroom cameras. Congressional hearings put the Justices on the spot to justify the Court’s positions in a public forum, thereby forcing the Court to periodically reconsider whether its existing practices help or harm its public legitimacy.

Neither the Supreme Court nor the federal court system should allow itself to be bullied by Congress or public demand, but there is still room for continuous improvement. The occasional public hearing can be a useful pressure point to bring that improvement to fruition.