Justice Alito rejects Congress' power on ethics in public break from peers: ANALYSIS

In their relatively rare public appearances off the bench, justices of the U.S. Supreme Court frequently profess to be agnostic on matters of politics and public policy.

"The court is an institution of law, not of politics, not of partisanship," Justice Brett Kavanaugh told a group of federal judges in a speech just last month.

By tradition, the justices have tended to stay far from political debate even in the midst of intense public criticism of their rulings and personal conduct.

When Chief Justice John Roberts declined a recent invitation by the Senate Judiciary Committee to testify about the high court's ethics standards, he maintained silence about a Democrat-sponsored proposal at the heart of the hearing.

Roberts broadly invoked "separation of powers concerns" and "judicial independence" for his decision not to opine.

But now Justice Samuel Alito is charting a starkly different course.

In a second interview with the Wall Street Journal just this year, published a month after he took to the paper's editorial page to refute misconduct allegations, Alito is directly confronting his critics and members of Congress concerned about ethical practices on the court.

"No provision in the Constitution gives them the authority to regulate the Supreme Court -- period," Alito said flatly, according to the Journal.

The claim, which is disputed by an array of legal scholars from across the ideological spectrum, came one week after the Senate Judiciary Committee moved for the first time to advance Democrat-backed legislation that would impose new ethics rules on the justices.

While all nine members of the court have long implied opposition, none has explicitly contested the latest effort to strengthen ethics accountability and transparency -- until now.

"The traditional idea about how judges and justices should behave is they should be mute," Alito said, according to the Journal. "At a certain point I've said to myself, nobody else is going to do this, so I have to defend myself."

The comments drew a sharp response Wednesday from Senate Judiciary Committee chairman Sen. Dick Durbin, D-Ill., who blasted Alito's "speculative public commentary on a bill that is still going through the legislative process."

"Let's be clear: Justice Alito is not the 101st member of the United States Senate. His intervention in Article I activity is unwise and unwelcome," Durbin said in a statement. "The ethical conduct of Supreme Court Justices is a serious matter within this Committee's jurisdiction. Ensuring ethical conduct by the justices is critical to the Court's legitimacy."

The decision by Alito to wade directly into debate over proposals to reform the court's ethics standards – and flatly deny their constitutionality – appears to breach longstanding norms of public impartiality over matters that could come before the justices.

"Because the Supreme Court possesses the authority to determine the constitutionality of legislative enactments, the Supreme Court itself would appear to have a critical role in determining whether Congress may validly impose a code of ethical conduct upon it," a nonpartisan congressional analysis concluded earlier this year.

"It is difficult to predict how a challenge to such a code might come before the Court and whether the Court would uphold its constitutionality, as existing judicial precedent offers minimal guidance on how the Court might resolve this constitutional question," the report reads.

They could similarly choose to abide by a code of conduct imposed by Congress, if one was ever enacted, or they could choose to simply ignore it, experts say.

What would happen next is unclear.

"The Court has never addressed whether Congress may impose those requirements on the Supreme Court. The Justices nevertheless comply with those provisions," Roberts wrote in his year-end report in 2011.

The Supreme Court is an independent branch of government established by the Constitution, and Congress has played a key role over the years in shaping its form and operations.

Lawmakers, for example, are responsible for establishing nine seats on the bench and for the requirement that justices take an oath of office.

Congress also explicitly included the justices in a law enacted after Watergate that mandates financial disclosures from all federal officials and in a separate measure dictating the Court's jurisdiction.

None of those steps was overtly challenged by a member of the Court at the time, and justices have taken steps to comply.

While the possibility of a showdown between the court and Congress over an ethics code seems unlikely in the near term, it remains on the horizon as a possibility.

As the Presidential Commission on the Supreme Court concluded last year, Congress "would need to be careful to ensure that the code's demands did not encroach on the Court's constitutionally exclusive judicial decisionmaking function."

But the bipartisan panel of 34 scholars from across the legal world was also conspicuous not to say that Congress could not try.

"Congress can pass whatever they want," said Sarah Isgur, a former Justice Department attorney and ABC News legal analyst. "The problem is always going to be the 'stick' – the mechanism by which they enforce it."