Every time I see Alito putting forth this particular lie, I have to post this.
Article 3, Section 1 first line:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish
The court itself was established through an act of Congress, the Judiciary Act of 1789, and Congress has had the power to both set the number of judges and impeach them throughout the entire history of the United States.
Alito should be disbarred for even suggesting such a facetious legal theory.
Much as I believe the Supreme Court is in dire need of an ethics code, I don’t think the Constitution grants Congress power over the Supreme Court. Only the lower federal courts could be considered under their purview.
Article III of the Constitution established a Supreme Court, but left to Congress the authority to create lower federal courts as needed.
A good way to see that Congress does explicitly have control over the court is to note that Congress sets the size of the court, giving it control over the court. Furthermore, Congress has also been able to control the scope and juristiction of the court as well. Thus, based on the longstanding historical interpretation of Congress’ power, this is something they should be able to do.
That’s a fallacious interpretation. The Judiciary Act, as an act of Congress, can be amended by the legislative branch, and has been multiple times in the past, both to expand and contract the number of justices on the court - we’re talking 240 years of judicial precedent here.
Congress could, in theory, revoke the act, completely dissolving the court, and would still be within its Constitutional authority as long as it established one to take its place.
The founders saw just as much potential for justices to become despots as they did in the executive - it’s why they gave the power of impeachment to the Congress as check on both of the other branches of government, putting the highest power within the branch that most accurately represented the will of the people. Otherwise, they would have designated the executive branch as the establishing party of the court, or established it as they did Congress within the body of the Constitution itself.
He’s wrong.
