Hoff: Message to Supreme Court: Congress is still your daddy


Dr. Samuel B. Hoff is a George Washington Distinguished Professor Emeritus of history and political science at Delaware State University. A constitutional law scholar, he served as the university’s law studies director from 2005-19.

Recent revelations of unreported perks provided to several Supreme Court justices have cast a pall over the highest court in the land.

Worse, Justice Samuel Alito has claimed that ethics rules designed for all federal jurists do not apply to the Supreme Court and that Congress is powerless to regulate same. As my contribution to 2023’s Constitution Day and Citizenship Day, allow me to school the aforementioned justice on the document he has sworn to protect but has conveniently ignored.

After the American Revolution, the first national government created was the Articles of Confederation. That setup had only one branch, a Congress, along with only temporary courts and no executive. The replacement of the Articles with the Constitution added the latter two divisions as branches, but it is clear who controlled things at the outset. In other words, it is no accident that the judicial branch was relegated to third place in both constitutional order and regard.

Another argument contradicting Justice Alito’s assertion minimizing Congress’ oversight function over the court relies on two specific provisions of the Constitution. For one, the opening line of Article III includes mention of Congress’ power to create lower federal courts simultaneous with the establishment of the Supreme Court, tying all federal courts together in terms of accountability and responsibility. Additionally, the language of Article VI requires all judges — federal and state — to adhere to the dictates of the Constitution, not just lower federal courts.

The independent authority ostensibly gained by the Supreme Court’s establishment in the Constitution is largely a mirage. That is because Congress is listed as having powers normally reserved for the courts, including deciding issues of venue and jurisdiction in certain instances, as well as determining the punishment for treason.

If the arguments above fail to convince naysayers of Congress’ control over the courts, then it’s time to unload the keister-kicker: Congress’ Article I, Section 8 responsibility to make laws “necessary and proper” for exercising its powers. The Supreme Court justices would have their hands full defending the notion that the high court’s original or accumulated authority is outside the realm of that or any of Congress’ purview, whether it be pertaining to funding, procedures, jurisdiction or other areas.

Of course, the president has a key role in nominating justices to the high court. To counter Justice Alito’s attitude about Congress’ impotence when it comes to regulating the Supreme Court, a chief executive could simply require prospective nominees to be totally transparent about the type of dealings they have with others to ensure that no conflict of interest will transpire.

The fallout from the ethical lapses committed by some Supreme Court justices has led to a precipitous decline in popularity of the institution, such that it will take much time to recover. Moreover, a consequence of institutional disagreement with the court over the need for ethical guidelines has been proposals for diluting the court’s most fundamental power of judicial review, altering the number of justices serving on the court or placing an age limit on service.

At least Justice Elena Kagan is not tone-deaf as the conflict-of-interest controversy surrounds the Supreme Court, assuring critics that “we’re not imperial.” That’s a relief, for even if it is not feasible to expect that both chambers of Congress will be able to pass a law to clean up the mess soon, it is vital to recognize and respect its power to do so.

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