Chief Justice Roberts's Letter to Senator Durbin

Last week Senator Dick Durbin invited Chief Justice Roberts to testify before the Senate Judiciary Committee. Despite my hope that the Chief would send Justice Breyer, Roberts respectfully declined Durbin's invitation. And he sent a letter explaining his decision.

The letter is short–only one page–but Roberts packs a lot in there. I'll focus on three primary arguments.

First, Roberts invokes the separation of powers and judicial independence.

Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.

Roberts does not even begin to explain what those "separation of powers concerns" are. Nor does he elucidate why testifying would weaken "judicial independence." To play devil's advocate for a moment, Roberts would be under no obligation to talk about any case or controversy. And, with lifetime tenure and guaranteed salary, the Senators cannot actually do anything that would affect Roberts's ability to decide cases. The Senate could defund the Court, turn off the lights, eliminate law clerks, and so on, but those remedies are unlikely. Roberts's conclusory statements are not self-evident.

Yet, Roberts has made such an unexplained statement before. Every New Year's Eve, the Chief Justice issues an annual report. His statement from December 2011 included this paragraph:

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body. 

In January 2012, I wrote that Roberts issued an advisory opinion. At the time, I was persuaded by the Chief. But for reasons I'll explain later, I now think he's wrong. I'll come back to Roberts's opinion later in the post.

Second, Roberts turned to precedent. He explains that only two Chief Justices have testified before the Senate Judiciary Committee, including Chief Justice Taft in 1921 and Chief Justice Hughes in 1935. And those "hearings involved routine matters of judicial administration relating to additional judgeships in the lower courts and jurisdiction over appeals from lower court injunctions." Chief Justice Rehnquist appeared twice before House committees on similarly mundane matters. According to Roberts, no testimony was offered by Chief Justices Burger, Warren, or Vinson. Roberts mentioned that Chief Justice Warren submitted a prepared statement concerning federal employees salaries.

Roberts's history is incomplete. (He has a bad habit of ignoring unhelpful precedent; See U.S. v. Burr) The Chief omitted a very relevant invitation to testify in 1937. Shortly after President Roosevelt announced his Court packing scheme ("Court reform" in newspeak), the Senate Judiciary Committee invited Chief Justice Hughes to testify against the bill. Richard Friedman described the event in the Journal of Supreme Court History.

The Administration took less than two weeks to present its case, and then it was the turn of the opposition forces. Senator Burton K. Wheeler, the liberal Democrat from Montana, was scheduled to lead off their testimony on Monday, March 22. For some time he and his allies had been trying to bring the Court in on their side of the fight. On March 18 Wheeler, accompanied by Senators Warren Austin, a Republican on the Judiciary Committee, and William King, one of the panel's senior Democrats, called on Hughes to ask him to testify against the bill. The Chief Justice received the delegation "with his usual Jovian affability and expressed willingness to appear. He would not do so, however, unless accompanied by Brandeis, the senior and most revered member of the Court's liberal wing. The Senators left in jubilation, assuming that Hughes would testify with Brandeis and Van Devanter, as he had two years before against a bill aimed at changing the Court's appellate procedure, This time, however, Hughes found that Brandeis stood fast against an appearance in which the Justices would "testify on a matter affecting their own integrity." Hughes thereupon suggested that he might, in response to a request from the committee, write a letter stating the facts of the court's work. That idea Brandeis accepted and so, Hughes found, did Van DeVanter.

Ultimately, Hughes wrote a letter. But it was not approved by all members of the Court. Only Justices Brandeis and Van Devanter approved. Hughes wrote:

I have not been able to consult with the members of the Court generally with respect to the foregoing statement, but I am confident that it is in accord with the views of the justices. I should say, however, that I have been able to consult with Mr. Justice Van Devanter and Mr. Justice Brandeis, and I am at liberty to say that the statement is approved by them.

Plus Hughes seemed to issue an advisory opinion about whether Congress could divide the Supreme Court into "panels." Roberts issued his own such advisory opinion in December 2011.

Could Roberts have even prepared a letter on behalf of the entire Court in response to Senator? We know from Joan Biskupic's book that some of the other Justices are peeved at how much control the Chief takes over the Court unilaterally. I think it would be impossible for Roberts to gain consensus on such a letter. Speaking of Aaron Burr, Roberts did what he does best: talk less, smile more, don't let them know what you're against or what you're for.

Third, Roberts drew a direct comparison between himself and the President:

Congressional testimony from the head of the Executive Branch is likewise infrequent. According to the United States Senate website, no President has ever testified before the Senate Judiciary, and only three Presidents (in 1862, 1919, and 1974) have testified before any Congressional committee.

In 1862, President Lincoln voluntarily testified about how his annual message was prematurely published in a newspaper. In 1919, President Wilson voluntarily testified concerning the peace treaty with Germany and the League of Nations. And in 1974, President Ford voluntarily testified about his pardon of former-President Nixon.

Once again, Roberts played fast-and-loose with the history. A footnote on the Senate site indicates that George Washington testified before the full Senate in 1789.

1. President George Washington testified before the entire Senate on the subject of Indian treaties on August 22, 1789.

The Senate Judiciary Committee was not formed until 1816. So Roberts's statement was technically accurate, but it was not entirely forthcoming. Washington's meeting was actually quite significant. He sought the Senate's "advice" with regard to treaties with Indian tribes. Of course, the collective Senate was indecisive, and wanted to appoint a committee to study the matter. Washington found the incident to be such a waste of time that he never again sought the Senate's "advice." Going forward, Washington only requested "consent" in the form of a Senate ratification vote. I wrote about this episode in my 2017 article, SCOTUS After Scalia (starting at p. 135):

In a scene too remarkable to imagine, President Washington "started up in a violet fret."449 In words emphasized in Maclay's journal, the General barked, "This defeats every purpose of my coming here."450 Washington had visited the Senate with Henry Knox, the secretary of war, who could "give every necessary information."451 After Washington "cooled, however, by degrees," he did not object to a delay until Monday, "but declared he did not understand the matter of commitment" to a committee. 452 Washington then "withdr[e]w" with a "discontented air," that could be described as "sullen dignity."453 On Monday, the Senate reconvened, with President Washington wearing "a different aspect" from his previous visit.454 After a "tedious debate," and several modifications to the language of the treaty, the Senate provided its advice and consent.455 "This closed the business. The President of the United States withdrew, and the Senate adjourned."456 Presidential frustration with indecisive congresses is as old as the Republic.

Other than Roberts's incomplete account of history, the Chief Justice does not explain why he is analogous to the President. I suspect the answer would go something like this: the Constitution creates the executive branch and the judicial branch. The President is the head of the executive branch and Roberts is the head of the judicial branch. Therefore, they hold equivalent statute in our separation of powers. QED.

I don't think this argument works. The Constitution created the position of the President. No statute was needed when President Washington was elected. Likewise, no statute was needed to create the individual representatives and senators in Congress. No statute was needed to structure the number of Presidents (1) and size of each house. The Constitution took care of that. But a statute was needed to create the position that Roberts currently holds. And a statute was needed to set the size of the Supreme Court. Plus Congress was under no obligation to even create the lower courts, which Roberts now presides over. I discuss some of this history in Part II of my series with Seth Barrett Tillman:

Four years earlier, the Judiciary Act of 1789 stated that the "the supreme court of the United States shall consist of a chief justice and five associate justices." On the same day the Judiciary Act was enacted, President Washington sent a communication to the Senate, which was recorded in the Senate Executive Journal. Washington made nominations for the "Supreme Court of the United States." He selected John Jay for "Chief Justice," and John Rutledge, James Wilson, William Cushing, Robert Harrison, and John Blair as "Associate Judges."

But wait a minute, you might ask. Doesn't the Constitution require the Chief Justice to preside at the impeachment of the President? There is no requirement that the Chief Justice referenced in the Impeachment Clause is the same person as the presiding officer of the Supreme Court. None. Seth and I raised this issue during the first Trump impeachment, where we explained that Justice Thomas could have presided, if Roberts was unable to do so. Or, we think, Congress could designate a different presiding officer by statute. Lots of people offered commentary about our view on Twitter, but to my knowledge, they haven't revisited the issue in four years. It was, and is, very common for people to criticize us on topics they had previously given zero thought, and give zero thought subsequent to that criticism. Weird.

In any event, no the Chief Justice is not equivalent to the President in terms of our separation of powers. Why does this fact matter? Since Congress has created the judges of the Supreme Court by statute, Congress has enacted laws governing what those justices can do. Congress established the date on which the justice assembles (the first Monday in October), the required quorum size, the federal recusal statute, and so on. There are some limits on that authority with regard to judicial independence. But, sorry Chief, Congress could enact an ethics code on the Court. The permissible canons of such a code are a very different matter.

Comments

[Mr. Bumble]

Poor “Little Dick” Durbin. Maybe he should start in his own house if he’s concerned about ethics.

[Jason Cavanaugh]

At least you finally admitted that you’re perfectly fine with corruption as long its ‘your’ people.

I commend you for your consistency in failing to differentiate between right and wrong.

[BravoCharlieDelta]

No one cares anymore about principles, only outcomes and power.

[Krayt]

No one cares anymore about principles, only outcomes and power.

Ftfy

To quote Ellie’s dad from the end of Contact, “It’s the way it’s been done for billions of years.”

[grb]

Remember the movie All the President’s Men? It made popular the phrase “non-denial denial”. Blackman may bring a similar term into vogue: The “non-defense defense”.

This is the fourth time he’s skirted the issue of Clarence Thomas, but Blackman always veers aside. First, he restricted himself to quoting Judge Ho in his very ho-ish defense of Thomas and Kacsmaryk. Not a bit of personal opinion slipped into the post.

And there was a bizarre piece of whataboutism concerning Moore-Newman, with the most oblique reference possible to the Thomas fiasco. And there are these two posts on the Durbin invitation which carefully avoid the reason for the invite.

All of which is strange. After all, there have been no shortage of Right-wing sycophants willing to defend Thomas and we’d all expect Blackman to be first in line. Though, God alone knows how! Anyone who’d sell his mother’s house to his sugardaddy with the old lady still inside has obvious problems. He clearly thinks keeping that money spigot cranked wide open is way more important than any degree of self-respect.

[Moderation4ever]

The issue here is Thomas’s behavior. While Justice Gorsuch name has recently come up it seem small potatoes. Justice Thomas will never be impeached and there is little that can be done other than keep him under scrutiny, and I am sure that will now be the case. The solution here is one that has come up before and that is term limits. You cannot have a person with a lifetime appointment making decision on what is ethical for themselves. Justice Thomas cannot practically be impeached, but I also doubt he would be reappointed.

[Rev. Arthur L. Kirkland]

Perhaps a sound next step would involve professional discipline? No bar association would be required to have Associate Justice Thomas; any bar association with which he is associated would be entitled to enforce its professional and ethical standards.

[Glaucomatose]

There’s one more possible intermediate step. If Thomas lied in an official government record, he could be prosecuted like anyone else who did so. Maybe spending some time around the incarcerated would cause him to reevaluate his thinking on the workings of our criminal Justice system.

[hobie]

It’s funny you say this, because the only decision Thomas ever got right in his sorry-ass life was Apprendi in 1999. Where he eviscerated an aspect of mandatory minimum sentencing, saying that judges could not add extra time on a person’s sentence that a jury did not authorize. It freed thousands of people almost immediately

[Lee Moore]

No statute was needed to structure the number of Presidents (1) and size of each house. The Constitution took care of that. But a statute was needed to create the position that Roberts currently holds. And a statute was needed to set the size of the Supreme Court.

Leaving aside the question of the necessity for a statute to create a Chief Justice*, what is the argument that a statute is necessary to set the size of the Supreme Court ?

It seems to me that if the Congress had not chosen to attempt the task, the Constitution is quite sufficient to permit the Supreme Court to be stocked with judges, without any assistance from Congress.

Article III establishes the Supreme Court – no statute necessary here. And Article II empowers the President to appoint, with the consent of the Senate, judges of the Supreme Court. What need of Congress for this ?

Suppose that Congress had never got around to specifying a particular number of Supreme Court judges / justices. And suppose that President Washington had just gone ahead and nominated half a dozen, and suppose the Senate had consented to their appointment, and suppose that President Washington had gone ahead and appointed them ? What’s the argument that these folk are not properly appointed judges of the Supreme Court ? Everything has proceeded according to the Constitution and we’re off to the races. Whence comes the supposed requirement for Congress to stick its oar in ?

It might be objected that a President might, in a fit of excitement, appoint the sort of numbers that even the Rev would baulk at – forty or fifty maybe. But so what ? If the Senate doesn’t consent then they’re not going to get appointed. And if they do consent, all necessary constitutional hoops have been leapt through.

And if so, what is the constitutional status of statutues specifying the number of SCOTUS Justices ? Presumably the only source of congressional authority for such legislation is the “Necessary and Proper” Clause. But have I not just demonstrated that there is no necessity ?

* the Impeachment Power does seem to require a Chief Justice, but again that doesn’t absolutely require Congress to specify one. The judges of the Supreme Court might just say – look, this guy’s our Chief. Though it seems to me that there’s more of an argument for a N&P role for Congress in case two or three people turned up claiming to be Chief.

[ducksalad]

It’s a good argument, I wonder if anyone brought it up at the time.

It certainly works today in the negative direction. When a justice dies either the POTUS or the Senate Majority Leader can effectively decide 8 (or 7, or 6) is sufficient for an indefinite period of time.

[ah....Clem]

Shorter John Roberts:

“We are above the law. Go pound sand.”

Every single federal employee is bound by some sort of ethical rules, with the glaring exception of the nine justices. Why is that? Do they think they are royalty?

[Lee Moore]

What would be the authority for imposing such rules on Supreme Court Justices ?

Congress creates the lower courts, but SCOTUS is a constitutional creation. Ditto, the President, V-P, and members of Congress. Members of each House are subject to the discipline of their own House :

“Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”

But there’s no authority for passing a law to discipline a member for “unethical” conduct, so long as it isn’t also illegal.

And you can discipline the President and the VP by impeachment.
Ditto SCOTUS Justices.

It seems to me that you are confusing employees and holders of constitutional offices.

[Lee Moore]

And it seems to me that :

“What would be the authority for imposing such rules on Supreme Court Justices ?”

is what we have to read between the lines of Roberts’ letter. It’s not within Congress’s authority to impose any rules on the conduct of SCOTUS Justices, other than impeachment for departing from good behavior.

[Sarcastr0]

You know who can bind SCOTUS?

SCOTUS.

Internal controls are a quite common thing.

[Mr. Bumble]

Isn’t that what they claim to have done?

[Sarcastr0]

I mean, I don’t see any actual rules, do you?

[Mr. Bumble]

Super secret double probation?

[Life of Brian]

I don’t see any actual rules

Maybe that’s the “internal” part.

[Kazinski]

Not really true. There’s the good behavior clause. SCOTUS can set ethics guidelines, it’s still up to Congress to impeach if they violate them.

[Sarcastr0]

That’s not an internal control then.

You can have rules with only public opprobrium as the punishment.

[Lee Moore]

What authority does SCOTUS collectively have over the ethics or behavior of an individual SCOTUS Justice ?

They can glower at him/her/it in the canteen, but that’s about it. And he/she/it an glower back.

[Sarcastr0]

How does the chief get to preside?

Internal controls are not backed up by external authority. That’s kinda the whole thing.

[Lee Moore]

The Chief presides by the consent of the other judges. If they cease to consent, he no longer gets to preside. Then it’s up to the Article 1 branch to decide whether this amounts to a departure from good behavior.

We obviously have a different understanding of the meaning of “internal controls.” Mine comes from the business world, whereby the folk at the top make various rules that everybody else (and sometimes even the top dogs) are supposed to follow……on pain of some kind of punishment, ultimately dismissal. That’s why it’s an “internal control“. It’s not “internal suggestions.”

There are, obviously, other things that may guide our behavior – the opinion of our colleagues, peers, spouses, friends, the general public – but those are not the sort of “internal controls” that a business would recognise as such.

And as a general rule, we don’t even want judges to be guided by concerns about what these other folk think of them. We want them to be guided by the law. And nothing else.

[Purple Martin]

Lee, both Federal judges and SCOTUS justices are specifically subject to laws on conflict of interest and recusal:

28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge.

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. …a judge must disqualify himself if he knows that he, individually…, or his spouse…, has a[n]…interest…in a party to the proceeding, or any other interest that could be substantially affected by its outcome.

). Title 28 USC § 455 also provides widely-accepted enforcement mechanisms for judges—primarily, development of a code of ethics and a process to bring potential code violations to 3rd-party panel. (Currently implemented as The Code of Conduct for United States Judges as established and overseen by the Judicial Conference of the United States per 28 U.S. Code § 331 .

But neither the code nor the panel apply by law to Justices—it is assumed they’ll follow the law being forced to (that is, without an enforcement mechanism). But Bored Lawyer points out below, in accordance with US Const., Art. III, Sec. 2, SCOTUS acts
in “…appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

…which at least leaves a rationale for Congress to require, by regulation, SCOTUS Justices to be subject the same enforcement practices as currently mandated for Federal Judges (such practices to be modified by the same regulation as necessary).

[Lee Moore]

I take Bored Lawyer’s point, but I think the point is much narrower than is claimed. In context Congress’s regulatory power is the power to set regulations under which the Supreme Court exercises appellate jurisdiction.

I don’t think this can reasonably be said to extend to the conduct of individual Justices – it is regulation of the court as a whole and might cover things like rules of evidence, various ways in which the court could exercise its powers in appelate cases, which might be different from how they exercise their powers in original jurisdiction cases.

I don’t think it could include any general supervisory power over how the court decides cases, and in particular who gets to hear them. eg if Congress should enact that in hearing appellate cases, only Justices who have been appointed more than five years ago shall participate, that wouldn’t IMHO fall within the meaning of regulating the Supreme Court’s appellate jurisdiction. The same goes for required recusal. That attempts to interfere with the individual Justice’s exercise of his office, which is guaranteed by the constitution during good behavior. Not during compliance with any additional quaifications or conditions that Congress might attempt to enact.

And I think that’s why there’s no enforcement mechanism for SCOTUS Justices in the law you cite.

[gVOR08]

So Chief Justices have testified before congress but only about trivia. But it’s somehow unprecedented that a Chief Justice has testified because something, something. Even if there were precedent, it’s like arguing Trump shouldn’t be criminally prosecuted because we’ve never before prosecuted a former president. It’s unprecedented because no former president, or court, had given us cause.

[Bored Lawyer]

What would be the authority for imposing such rules on Supreme Court Justices ?

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

US Const., Art. III, Sec. 2, emphasis added.

Congress has the power to regulate the Court. It can and has regulated its jurisdiction. Don’t see why that does not include imposing an ethics code, or rules about recusal, on the justices.

Congress granted SCOTUS the power to make rules over itself. 28 U.S. Code § 2071. Which SCOTUS has done, it has a set of rules that govern procedures in its Court. https://www.supremecourt.gov/filingandrules/2023RulesoftheCourt.pdf

[Noscitur a sociis]

That doesn’t say that Congress can “regulate the Court.” It says that Congress can regulate how the court exercises its appellate jurisdiction.

(To be clear, I agree that Congress has some authority to impose ethics restrictions on the justices. But that’s not the source of it.)

[BravoCharlieDelta]

Every single federal employee is bound by some sort of ethical rules,

lmao wtf, the Federal Class is above the law. They do whatever they want to whomever they want

[Martinned]

This is all nonsense. Both the President and the Chief Justice should testify in Congress from time to time to account for what they’re up to. In the Chief’s case that would be the administration of the judiciary (i.e. not the cases before the Court) and in the President’s case that would be his administration of the executive branch. Whether they could be compelled to do so is besides the point, they ought to be willing to answer questions of their own accord. Press conferences won’t do, nobody other than journalists thinks those produce true accountability. The only place where the President and the Chief can go to answer the questions of the American people is Congress.

[Lee Moore]

This is all nonsense. Both the President and the Chief Justice should testify in Congress from time to time to account for what they’re up to.

On what authority ?

Article II requires that the President :

“shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient”

but I don’t think that’s what you mean by “testify.”

And as to the Supreme Court judges, there’s no authority at all.

[Bored Lawyer]

Congress has subpoena power. Certainly to consider legislation. If it has power to enact an ethics code for the judiciary or the justices (which I think it does, see above), it has the power to hold hearings and subpoena witnesses to that end.

[Martinned]

That’s exactly my point: Always asking about “authority” is putting the cart before the horse. The American people should demand and expect from their office holders – elected and otherwise – that they are willing to be accountable to the American people as part of the job. If a person needs to be forced with legal tools to appear and answer questions, they’re already the wrong person for the job.

(For the avoidance of doubt, the flipside of Congress acting on behalf of the American people in this respect is that they have a duty not to waste people’s time with spurious and protracted questioning. That’s the advantage of not relying on legal authority: reasonable people agree between themselves what a reasonable amount of questioning is.)

[David Nieporent]

We don’t have a parliamentary system; there’s no Question Time for the president, who does not serve at the pleasure of parliament.

[Martinned]

No, he serves at the pleasure of the American people, who ought to demand that he answers their questions from time to time. And a few press conferences a year are completely insufficient for that, which leaves Congress as the only place for such questioning.

[David Nieporent]

He… doesn’t, actually. Except in the Declaration of Independence sense.

[Martinned]

It could be my imagination, but I could have sworn that I heard Joe Biden announce just the other day that he’s going to run for re-election.

[Lee Moore]

“at the pleasure of” means “at will”

The American public do not get the opportunity to boot the President out until his term ends.

Not at all the same as a Prime Minister in a parliamentary system, where the parliament can boot the PM out whever they like. As Mrs May, Mr Johnson and Ms Truss would be able to remind you. All within the past four years – less than one Presidential term.

If you want to remove the President before his term ends, the traditional method involves a firearm.

[Longtobefree]

The US Senate investigating ethics is like Bill Clinton investigating chastity and fidelity.

[Mr. Bumble]

Which was the point of my comment at the top of the thread that Jason C took exception to.

[Bored Lawyer]

How about dry-cleaning dresses from various stains? Think Clinton has anything to say about that?

[Area Man]

The “Chief Justice” referenced in the Impeachment Clause is the same chief justice who presides over SCOTUS. It was thought that, when Congress takes the extraordinary step of trying the head of the executive branch, someone other than the vice-president—who has a conflict of interest in seeing the president removed—should preside over the trial. And the most logical choice was the head of the third branch. If it was supposed to be someone else, it’s weird that the first Congress chose to name the position “Chief Justice,” as that would only create confusion with the constitutional impeachment officer. Instead, the logical conclusion is that the ratifying generation considered them to be the same official. Before Blackman’s assertion, has anyone ever contended that they aren’t the same official?

[Area Man]

Sure enough, Federalist no. 65 refers specifically to the “chief justice of the Supreme Court.” They are, and have *always* been regarded as, the same official.

[Davy C]

Other than Roberts’s incomplete account of history

This criticism of Roberts is unfounded. You wanted him to include a case where the Chief Justice did *not* appear before the Senate Judiciary Committee? How many footnotes did you want him to include in a one-page letter? (If anything, a *declined* invitation strengthens his position of declining the invitation anyway.)

[Stephen Lathrop]

Roberts can’t go to the Senate. It isn’t just Thomas. It’s his own wife, and her consulting business, finding jobs for lawyers, who may then practice before the Court. And now it’s also Gorsuch, and his own shady real estate deal, and blank space on the reporting form.

This is the most corrupt Court the nation has ever had. The burden of illegitimacy attaches case by case. It is important to stop filling a storehouse of illegitimately-decided cases, which will outlast any reform.

Thus, it would makes sense to impeach all of them, with the exceptions of Jackson and Barrett, who deserve a chance.

Start over. Let the Ds choose 3, in addition to Jackson; let the Rs choose 3 in addition to Barrett, then flip a coin to see which side gets the last pick. Or time the replacement, to make it a salient issue in the next election, and let the People choose with their votes which side picks the 9th Justice.

[David Nieporent]

There was no shady deal for Gorsuch, and Roberts’ wife being a legal recruiter does not pose any ethical issues.

[Stephen Lathrop]

Sure, but tautological in the absence of standards. My personal standards must be more demanding than yours.

[Noscitur a sociis]

What was shady about Gorsuch’s deal?

[NOVA Lawyer]

“Roberts’ wife being a legal recruiter does not pose any ethical issues.”

That depends. If she is placing attorneys in positions where they then argue before the Supreme Court, an unethical Justice could be swayed because helping the attorneys she places get better results would inure to her reputation and hence her pecuniary benefit and hence his own pecuniary benefit. It’s pretty attenuated, but is it really that hard for her to limit her business so it doesn’t touch the Court? Is that too big a sacrifice to make to keep the Supreme Court beyond reproach, ethically.

All they have is their reputation. They are trashing it.

Cry me crocodile tears if one of the bad things about being a Supreme Court Justice is that you have to insulate your finances from Court business. Completely. You have life tenure and the most coveted job in the entire legal field. You can live a very comfortable life writing books, etc., if you haven’t already made enough before becoming a Justice. But there’s no reason you shouldn’t have to choose between obscene wealth and extreme power.

Do I believe Roberts is at all actually influenced by any of his wife’s dealings? No.

Gorsuch and his real estate deal? Probably not. But getting a deal 9 days after your confirmation after two years of trying? And it’s to someone running a firm with significant business before the Court? An absolutely terrible look. And you omitted the name of the person to whom you sold it? That’s not how you get rid of the appearance of impropriety. That’s how you create it.

Thomas? There’s just too much there for it to be at all acceptable.

Roberts’ chief concern, purportedly, has been protecting the legitimacy of the Court. He has failed miserably. Failing to deal with Thomas, ignoring the whole thing (in effect), is just destroying the credibility of a very important institution. The United States deserves better than this.

[David Nieporent]

He didn’t omit the name of the person to whom he sold it, because he didn’t sell it.

[ducksalad]

The whole idea is bad, but I particularly object to this part:

“Let the Ds choose 3, in addition to Jackson; let the Rs choose 3 in addition to Barrett”

Wrong in so many ways. Openly embracing the idea that it’s just a spoils system and the judges “represent” particular parties, right after complaining about corruption. Flippantly disenfranchising the plurality of Americans who don’t belong to either of those parties (49I, 25R, 25D, 1 other according to recent polls.) Violation of the constitutional requirement that *each* judge be approved by a majority.

A more realistic idea if we did have to start over: a raucous crowd of those people you want to disenfranchise herd the Senators and the POTUS into the Senate chamber and bar the doors, with only bread, water, and chamber pots going in and nothing allowed out until they come up with 9 names agreed upon *unanimously*.

[Stephen Lathrop]

I agree in principle with what you say. But I think what you say is akin to demands that the Justice Department eschew political considerations while investigating Trump. It can’t happen that way. If Trump committed political crimes, to rule out political considerations while charging him veers too close to granting impunity. I suspect reluctance to consider forthrightly the implications of that conundrum accounts for what seems to be a dawdling pace for the investigation, at least by Garland. It is too soon to say the same about Jack Smith.

The present Supreme Court has pickled itself in partisan politics, with every justice a participant, except perhaps the two most recent. Can you see any way to fix that without politically conscious counter-measures? It is hopelessly naive to suppose the Ds will not resort to political opportunism to get even, as soon as they assemble political power sufficient to accomplish it.

That said, I would be fine with your requirement for unanimous confirmations, at least until it became apparent that one side or the other was somehow leveraging that high bar to preserve some already-existing perceived advantage.

[Estragon]

Whatever happened to that whole thing with Bart O’kavanaugh’s season tickets anyways?

“I LIKED BEER”

[Michael P]

There sure are a lot of leftists here desperate for any excuse to restructure the Supreme Court. Have they forgotten that they don’t have a majority in the House any more, and that their best bet for the presidency needs cheat sheets to face even a friendly press?

[Jason Cavanaugh]

Forcing the Court to implement an ethical code is not ‘restructuring’ the Supreme Court.

If you aren’t capable of following the discussion, I suggest that you go back to the children’s table and keep quiet.

[Krayt]

So Congress imposes ethics. It gets violated. Then what? Nothing? Impeachment?

[GKHoffman]

No, Congress can’t tell the Supreme Court how to act, what to do and not do, how to police itself, etc. If Congress had that power, before long it would be requiring the Supreme Court to submit its written decisions before publication to a DEI administrator for sensitivity analysis.