The Volokh Conspiracy

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Congress Can Regulate the Supreme Court—But There Are Limits to That Power

Justice Alito was wrong to suggest Congress has no authority to regulate the Court. But that authority is itself subject to constraint.


Supreme Court Justice Samuel Alito
Supreme Court Justice Samuel Alito. (Erin Schaff/UPI/Newscom)

Supreme Court Justice Samuel Alito recently kicked off a controversy by saying that "No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period." Taken literally, that statement is nonsense. Congress clearly does have power to regulate the Court in a variety of ways. Alito is also probably wrong if we interpret his statement more narrowly, as merely saying that Congress has no power to impose an ethics code on the justices, as various critics of the Court have recently advocated. But congressional power over the Court is not unlimited. And some ethics rules could potentially run afoul of constitutional constraints.

As many critics of Alito's remark have pointed out, the Constitution gives Congress extensive authority over various aspects of the Supreme Court's structure and operations. Congress can set the number of justices, their pay and benefits, the amount and type of staff they are entitled to, and the scope of the Court's appellate jurisdiction. Article III of the Constitution states that the Court's "Appellate jurisdiction" is constrained by "such Exceptions, and under such Regulations as the Congress shall make."

These powers are subject to some textual limitations. For example, Congress cannot abolish or even restrict the "original jurisdiction" of the Court (cases which begin in the Supreme Court, as opposed to the lower courts), which extends to "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." Similarly, Article III, Section 1 says that federal judges' pay "shall not be diminished during their Continuance in Office." Thus, Congress cannot lower the pay of current judges. But it can let inflation eat away at the real value of their salaries, and can mandate lower pay for judges appointed in the future.

Despite some textual constraints, it's pretty obvious Congress has extensive authority to regulate the Court in various ways. I suspect Alito is well aware of this, and didn't mean to make the radical claim that Congress literally has no power over the Court at all. Either that, or he may have spoken off the cuff, without carefully considering the implications. We all make mistakes like that sometimes. But people understandably pay more attention when the one who makes such a gaffe is a Supreme Court justice.

Alito may have meant something like that Congress lacks the power to regulate the Court's internal operations, because doing so would undermine the judiciary's ability to function as an independent branch of government. And imposing an ethics code would, in his view, breach that constraint.

Even this more moderate and reasonable version of Alito's position is questionable. Article III empowers Congress to make "regulations" for the Court's appellate jurisdiction. That power surely includes at least some authority to ensure that cases are heard in a fair and unbiased fashion. For example, few deny Congress can bar Supreme Court justices (and other federal judges) from taking bribes. And the federal anti-bribery statute does in fact cover the justices along with other federal judges. The same logic can also empower Congress to restrict at least some potential conflicts of interest less extreme than outright bribery.

On the other hand, Congress' regulatory authority over the Court is not unlimited. For example, it cannot dictate case outcomes or mandate the use of particular interpretive methodologies, such as originalism or living constitutionalism. Doing so would usurp the core of "The judicial Power of the United States," which Article III says is vested in the Supreme Court and lower federal courts, not in the legislative branch. If "judicial power" has any meaning at all, it includes the power to decide cases independently, without coercion by other branches of government.

Similarly, Congress cannot use an ethics code or other regulations to incentivize judges to rule in particular ways. For example, it cannot give higher pay to judges who make right-wing rulings as opposed to left-wing ones, or vice versa. And it cannot make ethics rules under which justices are more free to take gifts and awards from conservative groups than liberal ones (or the reverse). And so on.

Difficult questions may arise in situations where evidence indicates that a seemingly neutral ethics code or other regulation was in fact enacted for the purpose of skewing judicial incentives in favor of some litigants or causes relative to others. Such a situation would raise questions similar to other cases where a facially neutral law or regulation was actuated by constitutionally impermissible motives (e.g.—a facially neutral law intended to target people based on race, gender, or religion).

In sum, the literal version of Alito's statement makes little sense. Congress can pretty obviously regulate the Supreme Court in  a variety of ways. It can also probably impose at least some types of ethical restrictions on justices, at least if we concede that it has the power to ban bribery, which few dispute. But congressional power over the Court is far from unlimited. And some ethics rules could potentially go beyond the scope of congressional authority.

While Congress can enact at least some ethics rules constraining the justices, that doesn't by itself tell us what constraints it should impose. My own view is that many of the ethical complaints against the justices are overblown (e.g.—there's nothing wrong with former Supreme Court clerks making small Venmo payments to defray the cost of a holiday party they and the justice they worked for decided to organize). There is also no evidence that any justice decided any case differently because of any gifts from a private party.

At the same time, I do think there should be constraints on justices taking large gifts from private individuals and organizations, other than perhaps close relatives. Some of the largesse Justice Thomas got from conservative billionaire Harlan Crow, goes beyond what can reasonably be justified. The same might also be said for some of the free travel and other perks received by other justices, including some of the liberals. Congress should, I think, impose some restrictions, though it may not be easy to find the exact right place to draw the line. I may have more to say about that in a future post.

For now, it's enough to say that Congress does have considerable authority over the Court. But that power is itself subject to important constraints.