What I Mean When I Say The Congress Has The Whip Hand

Professor Vladeck:

There are specific reforms that would help (like an Article III Inspector General; a reassertion of control over the Court's docket; and use of the Court's budget as an oversight/accountability cudgel). But it's more about getting back to a place where the Court's *always* looking over its shoulder.

We have come to this pass because Congress has abandoned its authority. Impeachment and term limits and increasing the court size are, as Thoreau would put it, hacking at the branches of the tree of evil, instead of at its roots.

The good professor again:

The Callais ruling is the latest evidence that the real problem with #SCOTUS is that it can do whatever it wants without any fear of pushback from Congress.

The way to fix that is by making the Court *accountable* again, something that expanding it or imposing term limits won't actually accomplish:

And the portion of his argument not behind a paywall:

A world in which Congress is willing to hold the Court accountable is one in which it would not only override these kinds of patently ridiculous interpretations of statutes, but in which the specter of such legislative reaction might lead the Court away from such interpretations in the first place. And although the Court could still rest on (un-overrule-able) constitutional arguments to strike down Congress’s handiwork, that, too, assumes a Congress that wouldn’t simply respond by resorting to its array of other tools to push back against such an assertion of power by the justices.

Put another way, Callais itself and the reactions to it are both evidence, yet again, of what’s really wrong with the Court (the extent to which it has become completely unaccountable), and why the “right” way to fix it is to reform that, rather than hope that a Democratic president will appoint justices more committed than the justices in the Callais majority to the view that the Court is just one branch among three. Packing the Court may feel cathartic (and even accomplish partisan substantive goals) in the short term, but only at the further expense of the Court’s credibility and power in the medium- and long-term.

I won’t try to paraphrase, or even reiterate, the Professor’s arguments. The important point is to recognize the Congress has the whip hand, and we need to see that they reassert it.  Some reforms are certainly better than others; the devil is in the details, etc., etc., etc.  The important point now is to elect a Congress that will do something substantive. 

The Court wants to return us to our racist past. But we, the people, decide our path, not the Sinister Six. I’ve said before, it’s the Court that decided it was an independent third branch by itself, superior to, but apart from, the congressionally created federal judiciary. That judiciary is subject to ethical oversight, and retirement from the bench, that the Supreme Court says it is not subject to. Congress can change that. Art. III establishes the broad powers of a judiciary, and leaves the details to Congress.

Congress should remember that.