Justices may soon testify at a Senate hearing for the first time since 2011. The practice used to be more common; there are good reasons for bringing it back.
Thank you, Steve, for including that video of the Bronx in the house so to speak. Bush v. Gore was such agony for the majority who voted Democratic and won the popular vote. It’s been increasingly awful since then.
The SCOTUS budget has doubled just in the last 15 years, and has grown many multiples in the last four decades. Yet, the number of written decisions issued has plummeted. They regularly issued hundreds of written decisions per year 40 years ago. Now they issue 50-80 per year. I realize this is a brutish metric on which to measure SCOTUS performance, but for god’s sake, don’t the people deserve to know why the Court decides things and explains itself so infrequently? It’s obviously not a function of resources.
I ask rhetorically. America finally stood up against evil, and won 160 years ago. If we are determined to find out, then we know the answer is we must be ready for any answer.
It seems that the year 2008 was significant in the emergence of nonstandard behavior from Congress and the Court. Mitch McConnell was explicit in his determination that Obama would not have more than one term and used demonstrably twisted logic in his handling of Obama's prerogative to nominate a Supreme Court justice.
Whether you are are a textualist, or an originalist, the founders meant White men in the Declaration and proved it with the Constitution. The debate in SCOTUS about what the slave masters meant is bs by evil racists and misogynists and their captives, meaning fu to us.
My comment was about process which requires consistency to have legitimacy, noting that I wrote about 'the emergence of nonstandard behavior from Congress and the Court.'
What is consistent from SCOTUS is a masquerade until the people gave up the high ground by diving into the gerrymandering gutter with the slave masters. And so now, how does the weakest Congress in American history question an utterly corrupt SCOTUS?
I would posit that the Virginia case did accomplish something—specifically it strongly suggested if not showed that JJ Thomas, Alito & Gorsuch exhibit sympathy to the Independent State Legislature doctrine differently based on who invokes it. No surprise there, but still…
"I joined William and Mary law professor Jonathan Adler and host Julie Silverbrook."
I respect Julie Silverbrook's love of the Constitution.
Adler is not a hack akin to his Volokh Conspiracy colleague Josh Blackman. OTOH, on this subject, he has sometimes been hackish. He suggested, e.g., Alito had reason to think critics both on and off the Court were being hypocritical. That is the Wall St. Journal argument.
I noted in a comment that this is bullshit & he should know it. Saying that without more is hackatucular. He isn't always like that. To be clear.
The discussion of justices appearing before the Congress inevitably raises the issue of what questions they should be asked. If you were a member of Congress, what questions would you ask the justices who appear? Would you stick to administrative matters? Ask them about the emergency docket? Question them on merits case decisions?
"Given that vacatur is itself an exercise of the Supreme Court’s equitable authority, one might’ve thought that the Purcell principle should have augured against any intervention. Alas."
The timing of releasing these voting rights decisions have created, to use layperson's language, an egregiously hot mess. Couldn't the justices who voted in favor of releasing them now see that the timing would provoke lawsuits from people who to argue, in some cases convincingly, that their vote doesn't count, (or wasn't counted)? Isn't it at least conceivable that the consequences will end up before them again as a lawsuit?
You are a lot more generous in your judgement of the timing than I am, at least as I read your comments in today's New York Times story. All I can see right now is that there is a human cost, and a potential threat to the principal that everyone's vote counts.
Chief Justice Roberts cannot credibly or plausibly hide behind a separation-of-powers argument against all oversight or regulation by Congress. He and Justice Thomas joined in the dissenting opinion of Justice Gorsuch in 2019 in Gundy v. United States to emphasize the following about the separation of powers and how it was designed to serve and support the liberty and the sovereignty of the people, not to protect the mere turf of any of our public servants:
"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies."
The people who wrote or ratified our Constitution knew and believed that "enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest [certain] power in Congress alone. And it’s about safeguarding a structure designed to protect [the people's] liberties, minority rights, fair notice, and the rule of law." Clearly, "the framers afforded [judges] independence from the political branches in large part to encourage exactly [the] 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”
James Madison in Federalist No. 58 emphasized the following related vital principles (at which the SCOTUS majority recently barely hinted in Learning Resources):
"The [People vested in the] House of Representatives [the power to] refuse, [and vested in the House] alone [the power] propose, the supplies requisite for the support of government. [The People vested in Congress, alone, the power to] hold the purse [which is a most] powerful instrument by which we behold, in the history of the British Constitution, [the] representation of the people gradually [attaining the power of] reducing [ ] all the overgrown prerogatives of the other branches of the government [i.e., the executive and judicial branches]. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance [against the executive or judicial branch] and for carrying into effect every just and salutary measure [including those governing the executive or judicial branches]."
Moreover, Article I highlighted that the People vested in Congress the power "To make all Laws" that turn out to be "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in" Congress or "the Government of the United States, or in any Department or Officer thereof" (including judicial officers).
Steve. as you note, the Virginia redistricting case was a slam dunk for the Court -- it was beyond merely obvious.
However, that didn't prevent some of our "honorable" legislators from trotting out the slur that the Supreme Court is "corrupt" in a response to that slam dunk decision.
This slur, by the way, is an all-purpose insult, repeated here by one of your commentors.
I get it -- left wingers, here and in Congress, despise the court because it generally isn't ruling according to whatever their latest policy hobby horse is. Can't help the commenters here, but for those in Congress, why not try to do your job of legislating, instead of spending your time on X or Tik Tok?
Or in the case of the Virginia House of Delegates, and the state's midwit Governor, read and understand your own constitution, rather that do an obvious -- beyond obvious -- unconstitutional end run around its provisions?
How do you know I am a "Trumplican?" Whatever THAT means. ESP?
Meanwhile, some labels are accurate. Some are simply slurs. But I understand distinctions are hard.
Think about it this way.
Spanberger came into office with her campaign carefully crafting her image as a "moderate" Democrat, a competent pragmatist, bipartisan, a unifier.
Then BOOM! Her signature move was a brazenly unconstitutional, highly partisan, and, above all, a shockingly incompetent gerrymandering effort struck down in turn by the Virginia Supreme Court and US Supreme Court.
So, yeah, there's a label here. I am sure you can figure it out.
Your sneering disdain for a viewpoint that varies from your own is strict Trumplican.
And you are truly not up to speed on Spanberger's legislative moves.
Btw, do you have as much venom for each of the Trumplican states that have massacred every principle worthy of the name to appease Trump's fears if being held accountable for his massive lawlessness?
This post “Justices Testifying before Congress” is particularly rich even by Professor’s remarkably high standards for content and significance, as well as for me vomit-inducing, although tempered by a healthy dose of humor to put the bile in perspective (the “Hypocritic \“ versus “Hippocratic” typo - an even more Freudian slip would have been a reference to the Alliance for Hypocritical Medicine). If only all Alito’s errors and hypocrisy were as trivial and not as profoundly harmful for all of us as this typo. What strikes me in no order of degree of horror from this post are:
• Chief Justice Roberts’ invocation of the need to protect judicial independence as a justification for avoiding any accountability.
If Congress in principle (although not in practice today) has the right to check the federal executive, and the Supreme Court has the right to check Congress and the executive, why should Congress not have the right to check or supervise the Supreme Court, specifically at least in ways prescribed in the Constitution? Does the idea and practice of “checks and balances” apply only to the two other branches of government but not to the Supreme Court? Independence and accountability are not synonyms nor are they mutually exclusive. Both must be pursued in a balanced manner. Neither is absolute just as an individual’s freedom is not absolute, but must be limited if its exercise impedes the exercise of another’s freedom in a way that does not interfere with their freedom. (Note: Freedom includes freedom from as well as to). Roberts’ failure (deliberate or otherwise) to ignore the interrelationship between these two pillars of a functioning democracy is shocking. Oh and by the way, what about the sovereignty of We, the people? Has Roberts made any comments about how he views the role and obligations of the Supreme Court in this context?
• The absence of any consideration of the predictable harm to millions among the population of the United States of decisions such as Dobbs and the fate of access to mifepristone – so corporations with the financial rights of people (Citizens United) have priority over flesh and blood people when it comes to preventing harms to them?
• The gut-wrenching impact of the gutting of the Voter Rights Act on all of us, including most viscerally and immediately African Americans, and the obvious glee with which politicians in some states are taking “emergency” actions designed to eliminate elected representatives they object to purely on party political grounds. The one sided application of the Purcell principle in these cases is an example of the same mind boggling hypocrisy by the Supreme Court majority as Senator Mitch McConnell exhibited when he blocked even a vote on a Supreme Court nominee by President Obama months before an election, but ensured there would be one on a nominee by President Trump after he had lost the election in 2020.
"Gutting the Voter Rights Act?" Boy, this "gutting" word appears to be metastizing into the common discourse. Is that what REALLY happened?
As far as I can tell, the opinion did not do anything to deny a Voter the right to vote -- everyone can still vote. What it DID do is put a stop to the gerrymandering based on race, basically to benefit just ONE party, and we know who that party is.
Meanwhile, how about recognizing that the vast majority of White people are not inherently racist, prejudiced, and dumb and have actually VOTED for best candidate regardless of the color of their skin?
The VRA was established to correct decades of actions and behavior that prevented African Americans from being able to vote, ensuring that there would be few if any elected representatives whose life experiences and knowledge equipped them to advocate on behalf of segments of the population who had been traditionally discriminated against in public policies, by local and state authorities, and by individuals who could act and harm others on the basis of their overt racial prejudices with no risk of being punished. Yes, no one’s right to vote has been eliminated, but the practical effect of the Supreme Court’s and some other courts’ decisions is to eliminate the ability to construct constituencies which are likely to elect African American candidates to office whom African American voters believe will represent their interests or priorities that are specific to or weigh more heavily on their minds than those of white majorities. At the same time gerrymandering on behalf of one party – Republicans – which despite the fact Abraham Lincoln was the first Republican President – has shown itself to be much less attuned and even hostile to these priorities (not that Democrats have been as effective as they could and should have been in this regard) is allowed. Noone is saying -certainly not I – that most whites are racially prejudiced, but enough of them are to make a difference. At some point in creating a more perfect union I hope that race will become irrelevant. Then we will simply view characteristics such as skin color, texture of hair, shape of eyes etc. as superficial (but interesting) differences, which they are, given that all humans are genetically 99% identical. Characters and capabilities should be judged as individuals, not as if various ethnic groups are fundamentally different in these respects. The determined “emergency” actions initiated by some state legislatures to remap constituencies in the expectation that this will reduce the number of African American electeds demonstrates that we are not there yet. These legislators believe that enough white voters (to repeat it does not have to be a majority) will never vote for an African American candidate so that by changing the balance of voters in a constituency the number of African American electeds will be reduced. I hope that enough white voters will object to this tactic to prove that this expectation is exaggerated, and that therefore the outcome will not be that which these legislators are hoping for, to maximize their chances of reelection and offer additional opportunities to like-minded, non-African American candidates.
Having laid the groundwork for one party rule across the deep south, Alito and Thomas now whine because they can't ride another case from Louisiana to turn Dobbs into a near-nation wide ban? Such poor winners.
I think we shouldn’t underrate the possibility that Roberts just hates Congress specifically, which would track for a White House counsel under Reagan.
Though we should also consider that Roberts struggles to pick a good way to protect the Court institutionally, as leaked memos have recently shown.
Thank you, Steve, for including that video of the Bronx in the house so to speak. Bush v. Gore was such agony for the majority who voted Democratic and won the popular vote. It’s been increasingly awful since then.
The SCOTUS budget has doubled just in the last 15 years, and has grown many multiples in the last four decades. Yet, the number of written decisions issued has plummeted. They regularly issued hundreds of written decisions per year 40 years ago. Now they issue 50-80 per year. I realize this is a brutish metric on which to measure SCOTUS performance, but for god’s sake, don’t the people deserve to know why the Court decides things and explains itself so infrequently? It’s obviously not a function of resources.
Someone should definitely ask why the American people should fund their comparatively lavish lifestyles and perks.
I say: until the justices all appear, let them hear cases in the street.
These data points strongly support a significant expansion of the Supremes. Thank you!
How can the weakest Congress in American history meaningfully question an utterly corrupt SCOTUS?
I’d say it’s time to find out.
I ask rhetorically. America finally stood up against evil, and won 160 years ago. If we are determined to find out, then we know the answer is we must be ready for any answer.
It seems that the year 2008 was significant in the emergence of nonstandard behavior from Congress and the Court. Mitch McConnell was explicit in his determination that Obama would not have more than one term and used demonstrably twisted logic in his handling of Obama's prerogative to nominate a Supreme Court justice.
Whether you are are a textualist, or an originalist, the founders meant White men in the Declaration and proved it with the Constitution. The debate in SCOTUS about what the slave masters meant is bs by evil racists and misogynists and their captives, meaning fu to us.
My comment was about process which requires consistency to have legitimacy, noting that I wrote about 'the emergence of nonstandard behavior from Congress and the Court.'
So the consistency and legitimacy were lost?
What is consistent from SCOTUS is a masquerade until the people gave up the high ground by diving into the gerrymandering gutter with the slave masters. And so now, how does the weakest Congress in American history question an utterly corrupt SCOTUS?
I would posit that the Virginia case did accomplish something—specifically it strongly suggested if not showed that JJ Thomas, Alito & Gorsuch exhibit sympathy to the Independent State Legislature doctrine differently based on who invokes it. No surprise there, but still…
"I joined William and Mary law professor Jonathan Adler and host Julie Silverbrook."
I respect Julie Silverbrook's love of the Constitution.
Adler is not a hack akin to his Volokh Conspiracy colleague Josh Blackman. OTOH, on this subject, he has sometimes been hackish. He suggested, e.g., Alito had reason to think critics both on and off the Court were being hypocritical. That is the Wall St. Journal argument.
I noted in a comment that this is bullshit & he should know it. Saying that without more is hackatucular. He isn't always like that. To be clear.
The discussion of justices appearing before the Congress inevitably raises the issue of what questions they should be asked. If you were a member of Congress, what questions would you ask the justices who appear? Would you stick to administrative matters? Ask them about the emergency docket? Question them on merits case decisions?
"Given that vacatur is itself an exercise of the Supreme Court’s equitable authority, one might’ve thought that the Purcell principle should have augured against any intervention. Alas."
The timing of releasing these voting rights decisions have created, to use layperson's language, an egregiously hot mess. Couldn't the justices who voted in favor of releasing them now see that the timing would provoke lawsuits from people who to argue, in some cases convincingly, that their vote doesn't count, (or wasn't counted)? Isn't it at least conceivable that the consequences will end up before them again as a lawsuit?
You are a lot more generous in your judgement of the timing than I am, at least as I read your comments in today's New York Times story. All I can see right now is that there is a human cost, and a potential threat to the principal that everyone's vote counts.
Chief Justice Roberts cannot credibly or plausibly hide behind a separation-of-powers argument against all oversight or regulation by Congress. He and Justice Thomas joined in the dissenting opinion of Justice Gorsuch in 2019 in Gundy v. United States to emphasize the following about the separation of powers and how it was designed to serve and support the liberty and the sovereignty of the people, not to protect the mere turf of any of our public servants:
"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies."
The people who wrote or ratified our Constitution knew and believed that "enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest [certain] power in Congress alone. And it’s about safeguarding a structure designed to protect [the people's] liberties, minority rights, fair notice, and the rule of law." Clearly, "the framers afforded [judges] independence from the political branches in large part to encourage exactly [the] 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”
James Madison in Federalist No. 58 emphasized the following related vital principles (at which the SCOTUS majority recently barely hinted in Learning Resources):
"The [People vested in the] House of Representatives [the power to] refuse, [and vested in the House] alone [the power] propose, the supplies requisite for the support of government. [The People vested in Congress, alone, the power to] hold the purse [which is a most] powerful instrument by which we behold, in the history of the British Constitution, [the] representation of the people gradually [attaining the power of] reducing [ ] all the overgrown prerogatives of the other branches of the government [i.e., the executive and judicial branches]. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance [against the executive or judicial branch] and for carrying into effect every just and salutary measure [including those governing the executive or judicial branches]."
Moreover, Article I highlighted that the People vested in Congress the power "To make all Laws" that turn out to be "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in" Congress or "the Government of the United States, or in any Department or Officer thereof" (including judicial officers).
Steve. as you note, the Virginia redistricting case was a slam dunk for the Court -- it was beyond merely obvious.
However, that didn't prevent some of our "honorable" legislators from trotting out the slur that the Supreme Court is "corrupt" in a response to that slam dunk decision.
This slur, by the way, is an all-purpose insult, repeated here by one of your commentors.
I get it -- left wingers, here and in Congress, despise the court because it generally isn't ruling according to whatever their latest policy hobby horse is. Can't help the commenters here, but for those in Congress, why not try to do your job of legislating, instead of spending your time on X or Tik Tok?
Or in the case of the Virginia House of Delegates, and the state's midwit Governor, read and understand your own constitution, rather that do an obvious -- beyond obvious -- unconstitutional end run around its provisions?
In either instance, I am not hopeful.
For someone who objects to "slurs" against your viewpoint, you are quuck to insult others. The Trumplican playbook.
How do you know I am a "Trumplican?" Whatever THAT means. ESP?
Meanwhile, some labels are accurate. Some are simply slurs. But I understand distinctions are hard.
Think about it this way.
Spanberger came into office with her campaign carefully crafting her image as a "moderate" Democrat, a competent pragmatist, bipartisan, a unifier.
Then BOOM! Her signature move was a brazenly unconstitutional, highly partisan, and, above all, a shockingly incompetent gerrymandering effort struck down in turn by the Virginia Supreme Court and US Supreme Court.
So, yeah, there's a label here. I am sure you can figure it out.
Your sneering disdain for a viewpoint that varies from your own is strict Trumplican.
And you are truly not up to speed on Spanberger's legislative moves.
Btw, do you have as much venom for each of the Trumplican states that have massacred every principle worthy of the name to appease Trump's fears if being held accountable for his massive lawlessness?
This post “Justices Testifying before Congress” is particularly rich even by Professor’s remarkably high standards for content and significance, as well as for me vomit-inducing, although tempered by a healthy dose of humor to put the bile in perspective (the “Hypocritic \“ versus “Hippocratic” typo - an even more Freudian slip would have been a reference to the Alliance for Hypocritical Medicine). If only all Alito’s errors and hypocrisy were as trivial and not as profoundly harmful for all of us as this typo. What strikes me in no order of degree of horror from this post are:
• Chief Justice Roberts’ invocation of the need to protect judicial independence as a justification for avoiding any accountability.
If Congress in principle (although not in practice today) has the right to check the federal executive, and the Supreme Court has the right to check Congress and the executive, why should Congress not have the right to check or supervise the Supreme Court, specifically at least in ways prescribed in the Constitution? Does the idea and practice of “checks and balances” apply only to the two other branches of government but not to the Supreme Court? Independence and accountability are not synonyms nor are they mutually exclusive. Both must be pursued in a balanced manner. Neither is absolute just as an individual’s freedom is not absolute, but must be limited if its exercise impedes the exercise of another’s freedom in a way that does not interfere with their freedom. (Note: Freedom includes freedom from as well as to). Roberts’ failure (deliberate or otherwise) to ignore the interrelationship between these two pillars of a functioning democracy is shocking. Oh and by the way, what about the sovereignty of We, the people? Has Roberts made any comments about how he views the role and obligations of the Supreme Court in this context?
• The absence of any consideration of the predictable harm to millions among the population of the United States of decisions such as Dobbs and the fate of access to mifepristone – so corporations with the financial rights of people (Citizens United) have priority over flesh and blood people when it comes to preventing harms to them?
• The gut-wrenching impact of the gutting of the Voter Rights Act on all of us, including most viscerally and immediately African Americans, and the obvious glee with which politicians in some states are taking “emergency” actions designed to eliminate elected representatives they object to purely on party political grounds. The one sided application of the Purcell principle in these cases is an example of the same mind boggling hypocrisy by the Supreme Court majority as Senator Mitch McConnell exhibited when he blocked even a vote on a Supreme Court nominee by President Obama months before an election, but ensured there would be one on a nominee by President Trump after he had lost the election in 2020.
"Gutting the Voter Rights Act?" Boy, this "gutting" word appears to be metastizing into the common discourse. Is that what REALLY happened?
As far as I can tell, the opinion did not do anything to deny a Voter the right to vote -- everyone can still vote. What it DID do is put a stop to the gerrymandering based on race, basically to benefit just ONE party, and we know who that party is.
Meanwhile, how about recognizing that the vast majority of White people are not inherently racist, prejudiced, and dumb and have actually VOTED for best candidate regardless of the color of their skin?
The VRA was established to correct decades of actions and behavior that prevented African Americans from being able to vote, ensuring that there would be few if any elected representatives whose life experiences and knowledge equipped them to advocate on behalf of segments of the population who had been traditionally discriminated against in public policies, by local and state authorities, and by individuals who could act and harm others on the basis of their overt racial prejudices with no risk of being punished. Yes, no one’s right to vote has been eliminated, but the practical effect of the Supreme Court’s and some other courts’ decisions is to eliminate the ability to construct constituencies which are likely to elect African American candidates to office whom African American voters believe will represent their interests or priorities that are specific to or weigh more heavily on their minds than those of white majorities. At the same time gerrymandering on behalf of one party – Republicans – which despite the fact Abraham Lincoln was the first Republican President – has shown itself to be much less attuned and even hostile to these priorities (not that Democrats have been as effective as they could and should have been in this regard) is allowed. Noone is saying -certainly not I – that most whites are racially prejudiced, but enough of them are to make a difference. At some point in creating a more perfect union I hope that race will become irrelevant. Then we will simply view characteristics such as skin color, texture of hair, shape of eyes etc. as superficial (but interesting) differences, which they are, given that all humans are genetically 99% identical. Characters and capabilities should be judged as individuals, not as if various ethnic groups are fundamentally different in these respects. The determined “emergency” actions initiated by some state legislatures to remap constituencies in the expectation that this will reduce the number of African American electeds demonstrates that we are not there yet. These legislators believe that enough white voters (to repeat it does not have to be a majority) will never vote for an African American candidate so that by changing the balance of voters in a constituency the number of African American electeds will be reduced. I hope that enough white voters will object to this tactic to prove that this expectation is exaggerated, and that therefore the outcome will not be that which these legislators are hoping for, to maximize their chances of reelection and offer additional opportunities to like-minded, non-African American candidates.
Having laid the groundwork for one party rule across the deep south, Alito and Thomas now whine because they can't ride another case from Louisiana to turn Dobbs into a near-nation wide ban? Such poor winners.
The conservative justices will just ignore Congress under the direction of Roberts. Good luck.
I think we shouldn’t underrate the possibility that Roberts just hates Congress specifically, which would track for a White House counsel under Reagan.
Though we should also consider that Roberts struggles to pick a good way to protect the Court institutionally, as leaked memos have recently shown.
Loved this piece thank you.
Did you see John Oliver called you his son on Last Week Tonight about the shadow docket lol
There’s Nothing “honorable” about Alito!