SOTU dick durbin full_00090509.png
'Everything is on the table': Sen. Durbin vows action amid Supreme Court scrutiny
09:43 - Source: CNN

Editor’s note: Steve Vladeck is a CNN legal analyst and a professor at the University of Texas School of Law. He is the author of the new book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” The opinions expressed in this commentary are his own. View more opinion at CNN.

CNN  — 

In his recent letter to Senate Judiciary Committee Chairman Dick Durbin, Chief Justice John Roberts wrote that he was declining an invitation to appear before the committee to testify about some of the ethics issues swirling around the court because of “separation of powers concerns and the importance of preserving judicial independence.”

Stephen I. Vladeck

Although Roberts didn’t elaborate, some of the court’s more ardent defenders have gone further, suggesting that it would run afoul of Article 3 of the Constitution — which establishes the federal judiciary and enshrines its independence — for Congress to attempt to impose ethics (and other) reforms on the justices.

This argument — that the separation of powers constrains Congress from imposing meaningful checks on the Supreme Court — is utterly belied by the history of the relationship between the two branches, as I document in my new book, out Tuesday, titled “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”

Let’s start on common ground. Everyone agrees that the Constitution’s drafters deliberately broke from English practice by creating an independent federal judiciary — in sharp and marked contrast to the courts of 18th century Britain, which were the King’s Bench in both name and practice. But independence did not bring with it insularity.

Rather, as Alexander Hamilton famously wrote in Federalist No. 78, the judiciary was to be the “least dangerous” branch, dependent upon the political branches not just to carry its judgments into effect, but also to allow it to function effectively in the first place.

To that end, Congress, in the first century under the Constitution, repeatedly used an array of unquestioned constitutional powers to check the court. In 1802, Democratic-Republicans effectively eliminated the Supreme Court’s entire annual sitting for that year by changing the court’s regular meeting date — a not-so-subtle threat to the Federalist justices to behave.

Throughout the antebellum era, Congress required the justices to “ride circuit,” spending as much as six months of every year traveling the country to hear cases on lower courts — not because it served any especially noble purpose, but because it helped to remind everyone of their relative place.

And the court’s place, for much of this period, was literally in the bottom of the US Capitol — without offices of its own, much of a budget or even full-time staff. (The court would move upstairs to the Old Senate Chamber in 1860, but not to its own building until 1935, and even then, only because Congress appropriated the money to build it.)

In one especially notorious 1868 episode, after an oral argument signaled that the justices may have been ready to invalidate congressional Reconstruction measures, Congress simply stripped the court’s power to decide that specific case — a move the justices unanimously upheld. And even as recently as 1964, when Congress voted for a significant pay raise for all federal judges, it gave Supreme Court justices a far smaller one than lower court judges — largely as a signal of dissatisfaction with the direction of the court’s jurisprudence.

None of these moves violated the Constitution. The justices are guaranteed continued service during “good behavior” and a salary that can’t be diminished, but that’s about it.

Even the most pro-judiciary readings of the Constitution still leave to Congress broad control over the court’s docket, its budget and just about everything else short of the justices’ tenure and salaries. Congress’ powers are not unlimited, but there is no serious argument that any of these prior measures transgressed the relevant constitutional floor.

Thus, the issue isn’t that the Constitution prevents Congress from pulling these levers to exert influence over the court; it’s that Congress has chosen to stop pulling them.

Consider the court’s overall docket. Until 1891, the justices had to decide every single case over which they had jurisdiction. Even as recently as 1988, the court still had to hear a number of appeals, especially in cases raising questions of federal law in state courts. But at the court’s request, Congress progressively gave the justices more and more control over their docket.

Today, the only cases the court must hear involve certain campaign finance and congressional redistricting challenges. Otherwise, the justices pick not only which cases they hear, but which issues they want to decide within those cases. The result is that, after deciding well over 150 cases each term well into the 1980s, that total has slid all the way down to the 50s each of the last four terms — a nadir the court had not previously reached since 1864.

Although there isn’t the same history of congressional involvement in the justices’ ethics, a similar story can be told about the result of an unchecked court.

It’s one thing to debate whether specific conduct by specific justices runs afoul of the relevant ethical and financial disclosure rules — as many have claimed. But the extent to which it’s an uphill battle to even suggest that Congress might have the ability to provide for an accountability mechanism testifies to how far we’ve departed from Founding-era understandings of the balance of power between the branches.

The question isn’t whether Congress can do anything to rein in the court; it’s what it should do.

This is where my own view, and the thesis of the book, diverges in meaningful ways from the more high-profile reforms for which many progressives are clamoring.

I don’t think the answer is adding seats to the court or imposing term limits; even if there were a universe in which such mammoth changes were politically possible (and there isn’t), they don’t get at the core problem — the fundamental breakdown in the interbranch push and pull that characterized the first two centuries of the relationship between Congress and the court.

Get Our Free Weekly Newsletter

There are lots of ways to try to restore that relationship, but changing the court’s composition isn’t one of them. Rather, we should be focusing instead on the business of the court as a whole —and how Congress can and should be more involved in directing and supervising that business, as it was for so much of our history.

Some of those reforms ought to focus on technical changes to the court’s docket — taking back a modicum of control over which cases the justices decide and how. But some of those reforms ought to likewise be focused on increasing the accountability of the justices for their behavior, and not just their decisions — such as the bipartisan ethics reform bill recently introduced by Sens. Angus King, an independent from Maine, and Lisa Murkowski, a Republican from Alaska.

Restoring the healthier interbranch dynamic that kept the court at least largely in its lane for most of its first two centuries is something in which anyone who cares about the Supreme Court as an institution ought to be invested, regardless of how much they do or don’t like the current justices.