July 17, 2023

Congress Needs to Check the Court

Russ Feingold President

Our democracy is built upon three co-equal branches of government that check and balance each other. While separate, each branch is subject to reciprocal checks and balances by the other two, thereby ensuring that no branch exceeds its role or abuses its power. At least that is the idea. Currently, we have two inferior branches and one superior branch, namely the U.S. Supreme Court that has anointed itself above the Executive and Congress.

This anointed status is seen in the Court’s brash decision making in recent terms, from plowing through precedent, to disregarding judicial norms and manufacturing facts and standing in order to achieve a desired, partisan result. This packed Court is taking advantage of its conservative supermajority and of a splintered Congress to usurp power from the other branches. The Court has kneecapped executive agencies and decimated some of Congress’s most successful legislation, such as the Voting Rights Act, the Clean Air Act, and the Clean Waters Act.

The Court’s bravado, however, goes beyond its decisions and is seen in the behavior of its justices, arguably some of, if not the most powerful people in the country right now. ProPublica’s investigative journalism has revealed that two Supreme Court justices have billionaire benefactors who just so happen to have financial interests in the dealings of the Court. Reporting by Politico and the NYT has detailed extensive lobbying campaigns by special interest groups aimed at securing influential access to targeted justices.

What we are seeing are the actions of justices who do not believe they or their institution will be or even can be checked by the other branches. When a justice, presumably one of the smartest legal minds in the country, refuses to properly fill out financial disclosure reforms, it is not for a lack of understanding. When a justice refuses to recuse themselves from a case even though their spouse was directly involved in the events leading up to the case, it is not because he does not understand the concept of conflicts of interest.

This Court needs to be reminded that it may be the superior court in the land, but it is not the superior branch of government. It is just one of three co-equal branches of government that is subject to the checks and balances of the other two.

In recent months, the Senate Judiciary Committee has been stepping up, particularly on the subject of ethics. The Committee has held multiple hearings on Supreme Court ethics, or the lack thereof, in the wake of ProPublica’s detailed reporting. In anticipation of one such hearing, it took the obvious and courteous step of inviting Chief Justice John Roberts to testify before it regarding the Supreme Court’s casual attitude towards ethics. As the Chief Justice, it would make sense to ask if Roberts would speak to the Committee about his court’s either indifference or inability to police its members’ ethical lapses.

I’ll pause here to note that across American history, it was relatively routine for Supreme Court justices to appear before Congress. Justices have even lobbied Congress in the past for changes to the Court’s jurisdiction and their once mandatory travel schedule. The fact that this has happened less in recent years does not negate the historic norm that justices did appear before Congress, nor should it eliminate the expectation that they will in the future.

And yet, Chief Justice Roberts responded to the Senate Judiciary Committee’s invitation by not only declining to appear, but by suggesting that to do so would threaten the Supreme Court’s independence. History and the Constitution beg to differ.

Other than requiring that there be a Supreme Court whose members have life tenure during good behavior, the Constitution gives Congress enormous discretion over our highest court. Congress has the authority to expand or restrict the Court’s size, budget, and jurisdiction. Historically, Congress decided whether justices were required to travel the country or could do their work exclusively from the capital. For Congress to exercise its authority over the parameters of the Court is not a violation of the separation of powers or the Court’s independence. It is Congress complying with its constitutional authority and fulfilling our democracy’s principle of checks and balances.

The Senate Judiciary Committee is currently considering the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which would require the Supreme Court to establish a code of ethics and a mechanism by which to investigate alleged breaches, as well as other ethics reforms. The Committee is scheduled to mark up and vote on that legislation on Thursday, July 20th. This should be considered relatively ordinary. Think of how often members of the executive branch testify before Congress and how many bills are taken up each year to modify the power, obligations, and size of the executive branch. In other words, this is what checking and balancing a branch of government looks like.

I applaud the Senate Judiciary Committee for doing its job, for investigating credible reports of ethical lapses by Supreme Court justices, and for taking up legislation to rectify another branch of government’s blazing indifference to ethics. The Supreme Court needs to be reminded that it is not in fact beyond the reach of Congress and that its actions can be met by congressional investigations and court reform. Perhaps such a reminder will give the Court’s members pause in planning their summer vacations or in contemplating future power grabs.