By Gabe Roth, FTC executive director

We all remember this now infamous comment from two years ago:

“No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court, period,” Justice Alito told the Wall Street Journal in 2023.

The funny thing is, though, that even today, Alito does all sorts of things because of Congress’ ability and authority to regulate the Supreme Court.

He’s taken several such actions just this month.

On Monday, he recused from two petitions, likely due to his ownership of shares of stock in one of the named parties (he doesn’t explain his recusals, but in one of the cases, PNC was a party, and we know he owns PNC stock).

His recusal decisions stem from 28 U.S.C. 455(b), a law passed by Congress that states, “[a justice] shall disqualify himself […when he] or his spouse or minor child residing in his household has a financial interest in the subject matter in controversy or in a party to the proceeding.”

On May 1, he filed a periodic transaction report noting that he sold up to $15,000 worth of Boeing stock. He did that on account of a law passed by Congress in 2022 called the Courthouse Ethics and Transparency Act.

And earlier this month, you can bet that he either filed his 2024 financial disclosure report, due May 15 under the Ethics in Government Act, or asked for an extension and will file this summer, also permissible under the EIGA. In fact, Alito has filed a disclosure every year since becoming a judge in 1990.

With that as a wind-up, Fix the Court today is endorsing the bicameral Supreme Court Ethics, Recusal and Transparency Act, introduced by Sen. Sheldon Whitehouse and Rep. Hank Johnson. (This year’s version is largely the same as the one introduced in 2023.)

The bill — based in Congress’ authority, as referenced above, to regulate certain aspects of how the Supreme Court operates, so long as they don’t tell the justices how to decide cases or decrease their salaries — would create a way to investigate justices’ alleged violations of federal law and of the Court’s new Code of Conduct, all while permitting the Court to dismiss frivolous complaints.

It would require recusal explanations, strengthen the amicus disclosure rules and make it so that a justice would have to refer a recusal motion to the other eight justices and not simply decide for themselves if they are or are not conflicted.

Fix the Court was consulted on this bill and provided feedback, and the provision we’re most associated with is the one that establishes a six-year cooling off period between when a justice accepts a gift (they shouldn’t accept gifts, but even so) or receives outside income and when that justice is permitted to participate in a case involving the gift- or income-giver.

Bottom line: There are countless examples across the ages of Congress regulating certain institutional features of the Supreme Court, from its calendar to its funding structure to its financial disclosure responsibilities. Sen. Whitehouse’s and Rep. Johnson’s bill maintains that history and tradition by strengthening the justices’ conflict-of-interest rules, toughening gift and travel rules and instituting real enforceable ethics.

It might be a tautology but raising the bar raises the bar, and the Court should welcome this opportunity to reassert some ethical leadership.