... is discerning fraud based on…the population of the LA area? Oh, no, wait , he didn’t mention that at all.
Clearly he thinks we’re all as stupid as he is.
Although, what the actual fuck?
Justices have appeared on fairly nonpartisan programs for book tours before. It's a bit iffy ethically, and I'll criticize the liberal justices too (Sotomayor, Jackson more recently). But a sitting justice appearing on a partisan Fox News opinion program basically has no precedent.
Gorsuch does not fear any consequences for signaling his partisan alliances, and is abusing public trust. They are simply drunk with power. Ethics reform for these brazen justices needed ASAP.
Long past time to yank their chain. Hard. Pertinent to that, the 8 ways (
per Professor Vladeck) the Congress can do that. His explanations are worth reading, but I’m just going to give you the topics:
1) The Court’s calendar. Put it this way: The Court starts its term on the first Monday in October because Congress told them to: in 1915. Congress also stopped the Court from sitting in 1801 by changing its calendar.
2) Where the Court sits. Let me put it this way
Opposition to funding and construction of the current Supreme Court Building (a home for which Chief Justice Taft had aggressively lobbied since running for President in 1908) was usually pitched on exactly these terms—that giving the Court its own physical plant would give it too much power and separation from the democratically elected branches of government. Justice Brandeis, who would never use his office in the new building, objected that what he called the “Marble Palace” would turn the justices into “‘the nine black beetles of the Temple of Karnak’ and would cause them to have an inflated vision of themselves.” As Paul Freund would later put it, Brandeis “opposed the new Supreme Court building on the ground that it might tend to cause the justices to lose whatever sense of humility they had theretofore possessed.”
Until 1935, the Court met in the Capitol. In the basement, until 1810.
Maybe we should close the Supreme Court building.
3) Circuit riding.
Keeping the court in its place, and small “d” democratic, was once a thing.
As then-Representative James Buchanan (yeah, that Buchanan) put it in an 1826 debate, “[i]f the Supreme Court should ever become a political tribunal, it will not be until the Judges shall be settled in Washington, far removed from the People, and within the immediate influence of the power and patronage of the Executive.”
Are you seeing a pattern here?
4). The Court’s Docket
Again, to keep the pattern clear (and cut to the chase):
I won’t rehash here the long debates over (or earlier writings about) the merits and demerits of certiorari. The relevant point is that everyone understood each of these statutory reforms as transferring power from Congress to the Court—power that no one questioned Congress had the constitutional authority to both exercise directly and to delegate to the justices. Put another way, whatever the policy wisdom of certiorari, it’s another powerful example of how Congress used to use its control over the Court as a lever—and has stopped doing so. And the consequences have been … striking.
5) The Court's Budget
I’ve written before about the different ways in which Congress historically used the budget as a lever. But perhaps the most meaningful recent example is a March 2001 House budget subcommittee hearing, where Rep. Jose Serrano (D-N.Y.) grilled Justice Kennedy about the Court’s ruling in Bush v. Gore (there’s video). The idea that the justices can and should be made to publicly defend some of their more controversial rulings in order to receive their annual fiscal allotment may seem entirely foreign in 2026; it wasn’t as recently as a quarter-century ago.
History can be so instructive.
7) The Justices Salaries and Pensions
No, Congress can’t cut their salaries (Art. III), but…well, quotes are more concise here:
On the salary front, in 1964, when Congress gave just about every federal officer and employee a long-overdue pay raise, the nine recipients who got the least were the justices—reflecting Congress’s … pique … with the Court’s trilogy of major redistricting rulings. And on pensions, until 1937, Congress would sometimes use justice-specific pension statutes (like the one pictured above) to nudge justices off the Court.
Congress largely surrendered the latter power in 1937, when it created a permanent retirement mechanism for justices. But, again, here’s an example of how Congress used its unquestioned powers to check the Court both directly and indirectly.
Everything old
is new again. What was done in 1937, can be undone in 2027.
7) The Court’s Ethics
Justice Abe Fortas was forced to resign in 1969; not because Congress had imposed ethics on the Court, but because it could:
But in a nutshell, in the midst of a relatively modest scandal over Fortas’s relationship with a sketchy financier (which is not to say Fortas had clean hands), Chief Justice Warren went to Fortas and told him he had to resign for the good of the Court—because, if he didn’t, Congress would come after the Court (including, Warren feared, Justice Douglas). It was the specter of congressional investigations (and potential impeachment proceedings) that forced Fortas’s hand. Suffice it to say, I don’t see a similar conversation happening today. That’s not just a reflection on the justices; it’s a reflection on Congress.
Congress doesn’t need to threaten impeachment (although Thomas and Alito are ripe candidates). It can easily pass a set of ethical rules for the Justices. Or just make them subject to the same rules the other federal judges answer to. Including the requirement they retire from the active bench after a certain age. Professor Vladeck doesn’t add that; I did.
8) Congress has the final say in statutory interpretation
TL:dr: Congress could "fix” the VRA and tell Alito and Roberts to stuff it. If we can change Congress.
As I noted in last Thursday’s bonus post, Matthew Christiansen and Professor Bill Eskridge published an exhaustive study in 2014 that identified more than 100 statutes Congress passed between 1980 and 2000 at least parts of which overturned Supreme Court statutory interpretations with which it disagreed. That number has dwindled into the single-digits in recent years—and virtually no high-profile cases. (The most recent example I can think of is the Ledbetter case from 2007, which the 111th Congress overruled in its second statute in 2009.) A Congress that was still asserting its control over statutes would presumably have responded quickly, for instance, to Shelby County—and its demand for an updated “coverage formula” for the Voting Rights Act’s preclearance regime. But this Congress? Crickets.
I don’t mean to overstate this point; the volume of examples in the Christiansen/Eskridge study are a testament to the fact that even dynamic interbranch dialogue didn’t prevent the Court from getting a bunch of statutory interpretation questions “wrong.” But it’s worth asking what the “major questions doctrine,” or the overruling of Chevron, or any number of other moves the Court has made in the last decade would’ve looked like in a world in which the Court was genuinely convinced that Congress would more directly and immediately respond to its rulings.
Well, a lot of things could be done if we change Congress. On that note, what are we looking for?
Back to one of my favorite quotes (again, from Paul Freund): We should aspire to a world in which the justices “are not, [or] at any rate should not be, influenced by the weather of the day, but they are necessarily influenced by the climate of the age.” A lot of folks may think that can happen with the right justices. My own view is that, in the long term, that can happen only if we get to a point in which it doesn’t matter whether we have the “right” justices, because any justice is being regularly pushed to look over their shoulder—and across First Street.
Bottom line: the Court should regularly be reminded that it is the last mentioned in the Constitution, and the least defined there. And aside from a few specific tasks mentioned in Art. III, the Court is mostly governed by Congress. Time to restore that authority.
