It was in response to these developments that Alito unintentionally helped Democrats’ cause. Questioned about the SCERT Act, the justice replied on the record, “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.” This statement—in and of itself—is a perfect illustration of why the SCERT Act is needed.
To understand why, consider the context. Because the constitutionality of the SCERT Act, or any comparable legislation, would inevitably be litigated, the same pronouncement by a lower federal court judge would have violated the, adopted by the United States Judicial Conference in 1973 and applicable to all federal judges below the Supreme Court. Canon 3A plainly provides, “A judge should not make public comment on the merits of a matter pending or impending in any court.
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