The threat to the republic is Congress, not the Court.
The recent attacks on the Supreme Court (by recent I mean post Dobbs) are unjustified and wrong-headed – no matter which side of the aisle you are. They are the result of partisan politics. The alleged “ethics violations” of Justice Thomas, according to reports, date back over a decade but somehow miraculously never came to light until the Dobbs decision. What a stunning coincidence.
The ideas floating around about a binding ethics law or worse of “packing the court”, are stunningly flawed and dangerous.
Separation of Powers:
Congress attempting to exert control over the Supreme Court clearly violates this principle. We often hear of “coequal” branches of government, but this is misleading. They are separate but they are not coequal. The legislative branch is superior to the other two. The job of the Court is to review, interpret, and apply the law according to the Constitution. Those laws are written by the legislative branch, no other branch has the power to write laws.
Justice Alito recently stated that Congress has no constitutional authority to regulate the Court. He is correct. There is a “remedy” for this, and that is to amend the Constitution.
Those that propose to control the Court should be mindful that when their political adversaries hold a majority sometime in the future, they will be free to employ the exact same tactics to rebuild the Court as they see fit. Attempts to regulate the court only make the Court more political and less independent.
This has been attempted before and failed – for good reason. FDR tried this in 1937. It was viewed, as it should be, as an attempt to politicize the Court and a step in the direction of authoritarianism. Court-packing clearly undermines the independence of the judiciary.
Ethics legislation applicable to the Court is likely unconstitutional and entirely unnecessary. The clear intention of such legislation is to intimidate the Court, once again undermining independence. It is unnecessary because Congress already has the power to impeach and remove a Supreme Court Justice, providing of course that there is clear evidence of wrongdoing.
That isn’t the worst part though.
The worst part of this most recent rhetorical round of ad hominem attacks on individual Justices and on the “legitimacy” of the Court itself is that Congress has failed to do its job in the first place and is attacking the Court over it.
The Dobbs decision repealed Roe. Roe was poorly decided and even the pro-abortion legal experts that are honest have admitted this all along. Roe did not provide a legal definition of when life begins, and neither did Dobbs. Why? Simple – it is not within the power of the Court to legislate – that is for Congress. Roe happened because there was no legal definition of when life begins. Dobbs didn’t change that fact. Congress has never passed legislation creating that legal definition. If they had, neither of these cases would have ever happened.
If members of Congress are unhappy with the way the Court decides on ambiguous legislation, or the way the Court decides on issues Congress has refused to address, the clear remedy here is for Congress to do its job and pass unambiguous legislation and to stop throwing its job over the fence to the other two branches of government.
“But Gads, you naïve fool, that would require consensus and compromise in the legislature!”
Exactly, and if you build sufficient consensus, you can even amend the Constitution. Write your representatives and tell them you value consensus over partisan politics. Our system requires consensus – it’s not optional.
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