Supreme Court Justice Called Out Justice Alito's 'Power Grab'—Attorney

United States Supreme Court Associate Justice Samuel Alito poses for an official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. Alito was called out by Justice Ketanji Brown Jackson over a “judicial power grab”in a recent case, according to a legal scholar.

Supreme Court Justice Samuel Alito has been called out by liberal Justice Ketanji Brown Jackson over a "judicial power grab," according to a legal scholar.

Rachel Barkow, a professor of law at New York University, said that the outcomes Alito "endorses almost always coincide with what a conservative politician or interest group would prefer" and that the justice is governed by "his own practical judgment about what is acceptable." Barkow added that Jackson, without referring directly to Alito's dissent, "called out this judicial power grab for what it is."

Alito has come under fire after The New York Times reported that an upside-down U.S. flag—a symbol associated with Donald Trump's baseless claims that the 2020 election was stolen—was flown at his home in Virginia days after Trump's supporters stormed the U.S. Capitol on January 6, 2021.

Alito, one of six conservative justices on the Supreme Court, told the newspaper that the flag was briefly flown by his wife amid a dispute with neighbors and that he had no role in it. But the firestorm has intensified after The Times reported on Wednesday that "Appeal to Heaven" flag—which is associated with Christian nationalists and carried by some who stormed the Capitol—flew outside Alito's summer home in Long Beach Island, New Jersey, last summer.

The revelations come as public trust is declining the nation's highest court, which is increasingly viewed as partisan and needing an enforceable ethics code as it considers whether former president Donald Trump is immune from prosecution over charges related to his efforts to overturn his 2020 election loss and another case that could upend charges stemming from the Capitol riot.

Barkow wrote in a recent post on Cafe.com that Alito's "behavior off the Court has done a disservice to the high office he holds and further erodes public confidence in and respect for an institution that depends on both to function."

Barkow has been contacted for further comment via email. Alito has been contacted for comment via an email to a spokeswoman for the Supreme Court.

Alito's behavior in the nation's highest court "has done its own share of damage," Barlow wrote, noting he is the author of the bombshell decision that overturned the landmark 1973 decision in Roe v. Wade, which legalized abortion nationwide.

"But more than any one decision is his pattern of decisions," Barkow wrote.

Alito sides with the government in almost every case, with "indication in these cases that he is concerned with governmental overreach, the separation of powers, or individual liberty," she wrote.

"In noncriminal cases, the outcomes he endorses almost always coincide with what a conservative politician or interest group would prefer, and in that context, he does sometimes refer to governmental overreach or the separation of powers to stop the government from achieving a liberal aim."

'Bridge too far'

A prime example, Barkow wrote, came on May 16, the same day the Times reported the story about the upside-down flag being flown outside Alito's house.

That day, the court rejected a conservative-led attack that could have undermined the Consumer Financial Protection Bureau, ruling 7-2 that the way the CFPB is funded does not violate the Constitution. Justice Clarence Thomas wrote the majority opinion, splitting from his fellow conservatives Alito and Neil Gorsuch, who dissented.

Thomas wrote in his opinion that "the Bureau's funding mechanism fits comfortably with the First Congress' appropriations practice."

But in dissent, Alito said the court was upholding "a novel statutory scheme under which the powerful Consumer Financial Protection Bureau (CFPB) may bankroll its own agenda without any congressional control or oversight."

Alito "seems to think that the novelty of the CFPB's structure is sufficient to spell its constitutional doom because anything that departs from precise historical examples is a bridge too far," Barkow wrote.

'He recasts history'

"His opinion tries to recast the history as one in which there was a dominant model of annual appropriations and oversight by Congress and to brush off the many historical examples that do not fit this picture as narrow exceptions. And unless the CFPB looks exactly like those narrow exceptions, it must be ruled unconstitutional."

And Alito "seems to recognize that the logic of his opinion would mean the end of the Federal Reserve—and in turn, potentially catastrophic effects on the economy—because the Federal Reserve funding scheme (like the CFPB's) was designed precisely to avoid the tumult of politics and annual appropriations," Barkow added.

In a footnote to his dissent, Alito called the Federal Reserve a "unique institution with a unique historical background" and funding for it "should be regarded as a special arrangement sanctioned by history."

Barkow wrote: "It is ipse dixit—just his say so that it should be treated differently than the CFPB because he seems to recognize that striking down the Fed's funding arrangement would subject the economy to political winds that could be catastrophic. Whether Congress can set up funding in this manner is thus up to Justice Alito's own practical judgment about what is acceptable."

'Stay in your lane, Alito'

Barkow wrote that Jackson, without referring directly to Alito's dissent, "called out this judicial power grab for what it is."

She wrote that Jackson, one of the court's three liberal justices, "noted that '[w]hen the Constitution's text does not provide a limit to a coordinate branch's power, we should not lightly assume that Article III implicitly directs the judiciary to find one.' The separation of powers 'applies with just as much force to the Judiciary as it does to Congress and the Executive.' In other words, stay in your lane, Justice Alito."

Alito, Barkow added, "picks and chooses when he is an originalist, a textualist, or anything else depending on how it will decide the case before him. He cares only about getting to a conservative result.

"And while he can try to blame Mrs. Alito for the flag, he can't blame her for his judicial decisions and votes."

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