Actually, Justice Alito, Congress can regulate the Supreme Court
Over the weekend, in a lengthy interview with The Wall Street Journal's opinion page, Supreme Court Justice Samuel Alito offered insights into some of the ways he and his conservative colleagues differ in their approach to judging and the law.
For example, he said, Chief Justice John Roberts "puts a high premium on consensus," which is why "he rarely dissents." Justice Clarence Thomas gives less weight than other justices to stare decisis — the principle that once an issue has been settled in court, it remains settled — and often files solo opinions that disregard precedents he considers mistaken.
Alito observed that while both he and Justice Neil Gorsuch are textualists — i.e., they focus on the plain meaning of a statute's words — Gorsuch is much more likely to interpret a text in a way its author could not have intended. A quintessential example was the 2020 case of Bostock v. Clayton County. Gorsuch, writing for the majority, held that Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating because of "sex," extends to "sexual orientation and gender identity." Alito dissented, arguing that in 1964, when homosexuality was broadly disfavored, Congress plainly wasn't intending to make sexual orientation a protected category.
It was an interesting interview and well worth reading. But when the conversation turned to efforts by some members of Congress to impose specific ethical disclosure rules on Supreme Court justices and their clerks, Alito vigorously and emphatically voiced a claim that — to put it politely — makes no sense.
"I know this is a controversial view, but I'm willing to say it," he told the Journal. "No provision in the Constitution gives them the authority to regulate the Supreme Court — period."
It was a bizarre thing to say. Article III, Section 2 of the Constitution explicitly empowers Congress to regulate what the justices do. It does so most obviously by giving Congress considerable authority to strip the court of appellate jurisdiction. After listing a handful of areas in which the Supreme Court has "original jurisdiction" — litigation that must begin in the Supreme Court rather than a lower court — the Constitution leaves everything else up to Congress. When it comes to the 99 percent of cases that begin in a lower court, decrees the Constitution, "the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." (Italics added)
Thus if Congress wanted to, it could pass a law tomorrow barring the Supreme Court from hearing cases involving, say, environmental protection or wage-and-hour laws or disputes arising in Puerto Rico. It could block the Supreme Court from agreeing to settle legislative redistricting challenges. It could exclude the court from hearing arguments in tax matters.
Of course Congress isn't likely to do any of those things, but it has that power. By the same token, Congress could — it won't, but it could — pass the Supreme Court Ethics, Recusal and Transparency Act being pushed by Senator Sheldon Whitehouse of Rhode Island, and include a provision excluding it from Supreme Court review.
Jurisdiction-stripping isn't the only means Congress has of regulating the high court.
Under Section 1 of Article III, the salaries of federal judges "shall not be diminished during their Continuance in Office." Thus, while Congress cannot lower the pay of current judges, it can reduce the compensation (or other benefits) of justices to be appointed in the future. And of course the Supreme Court's budget, like all federal appropriations, is subject to congressional approval.
Moreover, it is Congress that specifies the text of judicial oaths, that decides how many seats the Supreme Court has, and that authorizes the court to hire law clerks. Congress cannot regulate the inner workings of the court or lean on the justices to rule one way or another. But it could presumably require a supermajority of justices to strike down a federal statute or regulation as unconstitutional.
All that is in addition to the fact that no one can serve on the Supreme Court (or any federal bench) without the consent of the Senate. And while it has never happened, Congress can remove a justice through impeachment by the House and conviction in the Senate.
Alito knows all this. So why would he tell the Journal that Congress has no authority "to regulate the Supreme Court — period"? The likeliest explanation is that he got so caught up in contending that Congress shouldn't presume to impose an ethics code on the high court that he veered into hyperbole. That happens sometimes, especially in unscripted conversations or interviews.
But if Alito and his colleagues really don't want Congress deciding what perks, gifts, and indulgences they may accept, they ought to voluntarily impose a strict code on themselves. The gratuities, lavish vacations, and luxury accommodations that the justices — liberals as well as conservatives — have gotten so used to accepting from wealthy admirers and deep-pocketed institutions are undermining the court's reputation. Rather than argue about Congress's authority to hold members of the Supreme Court to a higher ethical standard, how about if the justices raise that standard on their own? Alito and his colleagues are nine of the most powerful people in America. Their integrity should be beyond reproach. Right now, it's anything but.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Beacon Hill blows off its most important deadline. As usual.
In just about every state of the union, the new fiscal year began on July 1. And in just about every state of the union, lawmakers passed and the governor signed the budget before the deadline arrived. But not in Massachusetts. For the 13th year in a row, the most disreputable Legislature in America failed to perform its most essential — indeed, its only essential — task: adopting, in a timely fashion, the spending plan for the next 12 months.
On Friday afternoon, state House and Senate leaders announced that they had finally reached agreement on a budget and would bring it to a vote Monday. Following passage, Governor Maura Healey will have 10 days to review the budget and either sign it in its entirety or, more likely, veto and reduce specific line items. By the time the budget is finalized, more than one-tenth of the fiscal year will have elapsed.
What a disgrace.
The last time Massachusetts had its annual budget in effect by July 1 was 2010. That was the year that Barack Obama delivered his first State of the Union address, the New Orleans Saints won Super Bowl XLIV, Disney released "Toy Story 3," and Apple produced the first iPad.
State lawmakers have no trouble doing some things on time. When the current biennial legislative session began on Jan. 1, the House and Senate wasted not a moment in helping themselves to three — count 'em, three — pay raises. Right on schedule, every legislator's base salary rose to $73,654, expense accounts climbed to as much as $27,295, and the so-called leadership stipend collected by most legislators added at least $20,617 to their paychecks.
Similarly, we can be sure there will be no delay in starting the Legislature's August recess. Senators and representatives will take off this week for a month of undeserved R&R. Then, having accomplished virtually nothing of note for the first eight months of the year, they will reconvene in September for another four months of the same.
![]() Massachusetts legislators are about as productive as the Sacred Cod that hangs from the ceiling of the House of Representatives. |
And why should they do otherwise? They keep getting reelected, generally with no opposition, and voters don't seem to care that most of them have absolutely no influence on Beacon Hill. The minuscule number of legislators who control everything that happens in the House and Senate conduct nearly all business behind closed doors. State government in Massachusetts is infamous for its lack of transparency. Serious legislative matters are almost never debated openly. When lawmakers eventually pass each year's budget, they do so in lopsided votes that are mere rituals.
I remember a conversation I had years ago with the late David Broder, an esteemed Washington Post correspondent who was considered the dean of the Washington press corps. In the course of his travels around the country, he said, voters frequently expressed the conviction that their state legislators were the worst in the nation. I assured him that people elsewhere said that only because they didn't live in Massachusetts.
This is one of only a handful of states in which the Legislature effectively never adjourns. In most of America, voters don't permit lawmakers to stay in session year-round. In normal states, legislators convene for just a few weeks or months each year, craft a budget, pass whatever legislation is necessary, and go home. In some truly enlightened places, the legislature is in session for only a few weeks every other year.
Why has Massachusetts been seduced by the fiction that legislating is a full-time job, requiring "professional" lawmakers with fat salaries? Clearly it isn't true. For proof, look no further than the dozens of part-time legislatures whose budgets were signed, sealed, and delivered weeks ago.
In the real world, there are consequences to ignoring important deadlines. If you're skeptical, postpone your next mortgage payment until a month after the due date. Or see what happens when you show up for a flight that everyone else finished boarding hours ago.
Yet on Beacon Hill, the Legislature's routine nonfeasance barely raises eyebrows. State Senator Michael Rodrigues, one of the small number of legislators involved in the secret budget negotiations, dismissed a reporter's suggestion last week that members of the public wanted to know why the spending plan wasn't finished.
"Really?" he replied. "The public's not asking me."
The Senate and House might be motivated to act if the governor would light a fire under them. But Massachusetts governors are generally as lackadaisical about getting the budget passed as lawmakers are. "I know the Legislature is working hard on this. It's all part of the process," said Governor Maura Healey on Wednesday. Her predecessor was equally blasé. "Some years the budget lands on June 22, some years it lands on July 22, some years it lands on Aug. 22," then-governor Charlie Baker said nonchalantly in 2017. "The Commonwealth still manages to find a way to function."
That irresponsible attitude has been the outlook on Beacon Hill for as long as I can remember. I find it maddening that my fellow voters keep reelecting these bums instead of throwing them out. Then again, Bay State lawmakers have always been an embarrassment to democracy and good taste.
"In Massachusetts the worst men get into the Legislature," Elbridge Gerry told the Constitutional Convention of 1787. In Boston, he said, the State House was a place where "men of indigence, ignorance, and baseness spare no pains, however dirty, to carry their point." These days there are women in the State House too, but that's about all that has changed.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
André Watts, 1946-2023
The death of André Watts on July 12 didn't attract nearly as much media attention as the deaths a few days later of Tony Bennett and Sinéad O'Connor. Yet his musical talent was at least equal to theirs, and arguably greater.
Watts was a concert pianist whose career began when he was still a child. He was 10 years old when he performed a Haydn piano concerto with the Philadelphia Orchestra, having been selected after an audition in which 39 other pianists competed. In January 1963, when he was 16, he was introduced to a national audience by Leonard Bernstein, the conductor of the New York Philharmonic and host of the Young People Concerts broadcast on CBS. Bernstein described the "unexpected shock of wonderment and pleasure" that he had experienced when he first heard the teenager play.
![]() Through his career, André Watts generated, as one critic wrote, "the electric feeling that occurs only when an important artist is at work." |
"Out he came, a sensitive-faced 16-year-old boy from Philadelphia . . . who sat down at the piano and tore into the opening bars of a Liszt concerto in such a way that we simply flipped," said Bernstein. When the television audience heard Watts perform, they flipped too. "CBS network executives were buried in an avalanche of mail from all parts of the country," The Christian Science Monitor later recounted. "They could recall no similar response to any performance of classical music."
A few weeks later, Bernstein asked Watts to fill in at a Lincoln Center concert for the renowned Glenn Gould, who had fallen ill. "Subscribers groaned at the announcement of the last-minute substitution," wrote the Monitor, but "by the time he had reached the final chord, there was an instant ovation. An ecstatic demonstration shook Philharmonic Hall for 15 minutes."
Born in Germany to an African American father and a Hungarian mother, Watts wasn't just a young musical prodigy. He was a young biracial musical prodigy who had begun performing with some of the world's greatest orchestras in the era before the Civil Rights Act, when American audiences rarely, if ever, encountered nonwhite classical musicians.
Watts always refused to be identified by race. "I don't like the terms 'black' and 'white' — they're both inaccurate," he told The New York Times Magazine in 1971. "A person's color should be recognized as a means of physical description, and then dismissed."
Twice I got to hear Watts perform in person. The first time was at the Kennedy Center in Washington, D.C., in 1977, when I was a student at George Washington University. I still have the program and my ticket stub. I paid $9.50 for two orchestra seats. Watts played Schubert and Ravel. According to the program notes, he was then averaging 150 performances a year, had appeared in nearly every major concert hall in the country, and routinely toured overseas.
In 1995, I heard him play again, this time at Tanglewood. The first half of the evening featured Beethoven's Piano Concerto No. 5 and Watts was the soloist. By then, the "Emperor Concerto," as it is nicknamed, had become one of his signature pieces.
In her obituary for Watts, The Washington Post's Emily Langer noted that he lived with his mother after his parents divorced and that money was so short he was forced to practice on a piano that had 26 missing strings. From that difficult beginning emerged one of the astonishing musical careers of the last 50 years. For decades, audiences continued to flip when Watts took the stage.
"Mr. Watts communicates," the Times's legendary music critic Harold Schonberg observed in 1970.
He has that kind of personal magic that makes an Event of a concert, and Philharmonic Hall had the electric feeling that occurs only when an important artist is at work. It cannot be taught, this mysterious transmission from stage to audience, and Mr. Watts has it in very large measure. Hence the sold‐out house, the hanging on every note, the enthusiasm, the cheers.
Now he is gone at 77, his career and finally his life ended by prostate cancer. He was a remarkable musician and had a remarkable run. Cover lightly, gentle earth.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
What I Wrote Then
25 years ago on the op-ed page
From "75 years of underestimating Calvin Coolidge," August 6, 1998:
It was certainly true that Coolidge didn't believe in wasting words. In a profile written when he was still governor of Massachusetts, the New York World called him a "sphinx." He "talks little," the paper noted. "It is his silences which seem to speak loudest, for when one ventures to put a question to him, the answer comes in a tightening of the governor's lean face and the closing of his lips."
Yet he wasn't shy when he had something to say. He delivered more speeches than any of his predecessors. He held 520 press conferences. He was the first president to address the nation by radio and did so about once a month, paving the way for FDR's fireside chats.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
The Last Line
"Afterwards there was no turning back. The nations were caught in a trap, a trap made during the first thirty days out of battles that failed to be decisive, a trap from which there was, and has been, no exit." — Barbara Tuchman, The Guns of August (1962)
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
(Jeff Jacoby is a columnist for The Boston Globe).
-- ## --
Follow Jeff Jacoby on X (aka Twitter).
Discuss his columns on Facebook.
Want to read more? Sign up for "Arguable," Jeff Jacoby's free weekly email newsletter.