The U.S. Supreme Court is seen on Thursday, July 13, 2023, in Washington. Credit: Mariam Zuhaib / AP

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Michael Cianchette is a Navy reservist who served in Afghanistan. He is in-house counsel to a number of businesses in southern Maine and was a chief counsel to former Gov. Paul LePage.

Sometimes Supreme Court justices say silly things.

Back in 2001, before her appointment to the Supreme Court, Justice Sonya Sotomayor was speaking to a college symposium. She quipped that she hoped “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion” about a legal question “than a white male who hasn’t lived that life.”

A few weeks back, Justice Samuel Alito gave an interview to the Wall Street Journal. He was quoted as saying “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.”

Those are both pretty silly comments.

To her credit, Sotomayor walked her statement back several years later at her confirmation hearing. Alito has yet to speak further.  

Sotomayor claimed her comment was an ill-considered rhetorical flourish. The same is true of Alito’s.

If you take the latter’s statement literally, it is literally wrong. The Constitution provides that the court’s appellate jurisdiction exists “under such regulations as the Congress shall make.” In other words, Congress can regulate the Supreme Court.

If Alito meant something more general about the justices’ work habits, he may have a technical point. For example, some Democratic senators are pushing a law which would require justices to recuse themselves in certain circumstances.

Congress probably can’t do that. The Constitution says that the justices hold their office during terms of “good behavior,” so trying to override that to force them to “vacate” their office in certain circumstances through recusal is beyond Congress’ power. They can regulate the court’s jurisdiction as a whole, but not that of individual justices.  

But practicality is different from technicality.

The ultimate “regulation” over a Supreme Court justice is the impeachment power. Which belongs to Congress. Which means that Congress gets to decide when a justice is no longer on “good behavior.” And it isn’t a stretch to think that Congress might consider it “bad behavior” to ignore a duly-enacted law, even if there is a reason it doesn’t “officially” apply.

This may all seem a bit wonky, but understanding the Constitution takes on a new civic meaning with the ongoing legal saga surrounding former President Donald Trump.

There are some who believe that these cases will “stop him.” Under the Constitution, that’s wrong.

The indictments against him concerning classified documents in Mar-a-Lago are incredibly serious. The New York state case concerning financial reporting is pretty flimsy.

From what is publicly known now, the expected indictment in Georgia state court will likely have significant heft behind it. The recently released federal charges concerning the 2020 election are much weaker and inextricably intertwined with First Amendment issues.

Yet, no matter what happens with these legal cases, nothing will keep him from the White House should he be nominated and receive a majority of electoral votes. Because the Constitution provides only two ways to ban someone from office.

The first is through Congress, by Senate conviction following House impeachment, with an explicit decision to ban the accused.  

The second is through a conviction in a court of law for the crime of treason. Yet, hyperbole aside, Trump has not been charged with that crime.

There is a very real scenario where Trump is convicted of one of the charges against him and also re-elected to the White House. That may sound contradictory, but it is fully in accord with the Constitution.  

And neither silly statements from Supreme Court justices nor strong feelings — in any direction — about a particular candidate can supplant the provisions of the Constitution of the United States.

Michael Cianchette is a Navy reservist who served in Afghanistan. He is in-house counsel to a number of businesses in southern Maine and was a chief counsel to former Gov. Paul LePage.