Editor's Note: This debate on SCOTUS power originally published on Divided We Fall. It features perspectives from Jewish News Syndicate Chief Editor Jonathan Tobin, and Jeff Hauser and Vishal Shankar of the Revolving Door Project. It has been republished with permission from Divided We Fall. Photo by Tomasz Zielonka on Unsplash
Protecting the Supreme Court’s Power Is Paramount
By Jonathan Tobin– Editor-in-Chief, Jewish News Syndicate
Throughout history, criticism of the Supreme Court has come from political factions opposed to the substance of its decisions rather than their constitutionality. Whether it was President Franklin D. Roosevelt chafing at rulings that curbed the New Deal, conservatives angry with the Warren Court’s vast expansion of rights and protections, or today’s liberals who rail about the current conservative majority, debates about the Supreme Court’s power are always a function of those who want to alter it to get their way.
Contemporary liberals are upset about the originalism and constitutionalism of the Court’s six conservative members. While that’s just politics as usual, resorting to smears of Justices Clarence Thomas and Samuel Alito is a new low in discourse about the judiciary and sets a precedent that will eventually be applied to liberal judges as well.
The Executive Branch’s Power is the Problem
Political critiques and ad hominem attacks obscure the more important argument regarding why the Court has assumed such prevalence in the 21st century and must therefore be protected against politicians who want to court-pack or otherwise render it subservient to the other two branches of government. It is the same reason why each Supreme Court nomination has become so politicized and why even confirmed judges remain a focus of partisan attacks. The answer is checks and balances. Since Franklin D. Roosevelt, the federal government’s growth and the executive branch’s power have outstripped the capacity or the will of Congress to act as a check on it.
It’s more than a matter of political gridlock and congressional dysfunction. With each government department now issuing vast numbers of rules and regulations that have the power of law without specific congressional authorization, the executive branch has given itself almost dictatorial powers. Congress, paralyzed by partisan divisions, is overwhelmed by the challenge of reining in the bureaucracy.
The Supreme Court’s Power Is a Necessary Check
It is now the Supreme Court alone that has the power to overrule an out-of-control administrative state run not just by the White House but by unelected federal bureaucrats. The court cannot restore a broken system of checks and balances on its own. However, it remains the only effective check on the executive branch.
Neutering the court would not just be a win for Democrats angry about rulings that returned abortion regulation to the states, opposed racial quotas in school admissions, and defended free speech. It would be a victory for a Leftist-dominated administrative state that has, over the last century, undermined the balance of powers envisioned by the Founders. A Supreme Court that retains its current power is the only way to preserve our constitutional republic.
The Supreme Court’s Power Threatens Democratic Integrity
By Jeff Hauser – Executive Director, Revolving Door Project and Vishal Shanker – Senior Researcher, Revolving Door Project
Plummeting public confidence in the Supreme Court is a dangerous sign for our democracy and the Roberts Court has only itself to blame. Today’s Court has amassed enough power to destroy the Founders’ vision of checks and balances.
The modern-day Supreme Court is undemocratic. Three current justices were nominated by presidents who initially lost the popular vote. Five of the six conservative justices were confirmed by senators representing millions fewer Americans than those who opposed them—a contrast to bipartisan confirmations of yore.
Justices like Ruth Bader Ginsburg and Clarence Thomas have used their lifetime appointments to stay in office far longer than their predecessors, distancing them further from the will of the people. The confirmations of Justices Neil Gorsuch and Amy Coney Barrett were politics at its dirtiest, with conservatives flip-flopping on purported Senate precedent to ensure only Right-wing nominees received a confirmation vote.
Rejecting Precedents and Expanding the Supreme Court’s Power
Some Supreme Court justices have also faced zero consequences for ethics conflicts, permanently damaging the Court’s reputation as an impartial arbitrator. Justices Thomas and Alito have taken undisclosed gifts and vacations from billionaires Harlan Crow and Charles Koch. Furthermore, they refused to recuse themselves from cases concerning these benefactors’ business interests or that are backed by their judicial lobbying networks. Both men (and their wives) have also expressed open sympathy for former President Donald Trump’s role in the January 6th insurrection ahead of participating in January 6th-related cases. Others have also shown contempt for ethics: Chief Justice John Roberts’ wife recruited lawyers who have business before the Court, Justice Gorsuch has ties to fossil fuel baron Philip Anschutz, and Justice Sotomayor’s Court staff helped her sell books.
Justice Roberts’ response has been to issue an unenforceable code of conduct that permits the Court’s worst offenders to openly defy Congress’ calls for recusal. Mr. Tobin’s dismissal of these ethics conflicts as “smears” evokes a similar contempt for democratic accountability. That undisclosed luxurious gifts undermine judicial independence is not a smear—it’s common sense.
Gifts from wealthy patrons are especially concerning because the Roberts Court has consistently stood with Big Business at the expense of the common good. From rulings gutting campaign finance and collective bargaining to the rollback of Chevron doctrine, the Court is rejecting long-standing precedent in favor of radical expansions of judicial power endorsed by the Chamber of Commerce.
A Functioning System of Checks and Balances
Mr. Tobin is also wrong to say the Court is “the only effective check” on the executive branch. Congress can fund or defund executive agencies via the budget process, overturn regulations it disapproves of via the Congressional Review Act, and clarify regulatory authority via legislation. Contemporary regulators stand in line with predecessors from the earliest days of the Republic when Congress and the president delegated significant power to America’s military, postal, and customs officials.
A Court that views itself as above the democratic process, public ethics, and the balance of power is simply too powerful. As the late Justice John Paul Stevens put it, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
The Supreme Court’s Power Is Essential to Safeguard the Constitutional Republic
By Jonathan Tobin– Editor-in-Chief, Jewish News Syndicate
Mr. Hauser and Mr. Shankar claim the Supreme Court is too undemocratic and unethical to continue upholding the Constitution as it has done since the earliest years of the Republic. These arguments support those who believe that institutions which hinder contemporary liberal political goals must be swept away. However, this is incompatible with the preservation of a constitutional republic.
The notion that the Supreme Court’s power is rendered illegitimate because justices were appointed by presidents or confirmed by senators who don’t represent the parties supported by numerical majorities of voters in national elections is specious. It is at odds with the entire concept of the constitutional republic created in Philadelphia in 1787. The Founders were as worried by the prospect of pure democracy, which put governments at the mercy of mobs, as by monarchical tyranny.
Partisan Goals Are Not Reason to Reduce the Courts
If nominations to the Court are now mired in partisanship rather than the bipartisan acclamations of the past, it is because, starting in 1987 with the attacks on Judge Robert Bork, the political Left began a campaign of demonizing conservatives that has continued to this day. They should not be surprised that the Right finally began to understand the stakes in this conflict in 2016 by denying confirmation to Merrick Garland for equally partisan reasons.
Claiming the Court is plagued by ethical scandals is an invention of Democrats whose partisan motivations are obvious. More stringent ethics rules aren’t a bad idea, but all the alleged scandals promoted by the political Left about the current Court are charges with little or no substance. None of them involves evidence of actual conflicts of interest involving corruption. The sole aim of this campaign isn’t “democracy” but rather an effort to discredit justices solely because they disagree with their decisions.
Congress Won’t Check the Power of the Administrative State
But perhaps the most hollow of Mr. Hauser and Mr. Shankar’s claims is that the Court’s efforts to restrain the out-of-control and heretofore unchecked power of the administrative state undermines the checks and balances envisioned in the Constitution. In the last century, the administrative state has become an unaccountable fourth branch of government dominated by left-wing bureaucrats that badly requires reform. To say Congress has either the ability or the will to check the power of the numerous agencies making policy without respect for the law or the will of the elected legislative branch is pure fiction. The reason why the composition of the Court has become a partisan battleground is specifically because Congress has shown it is incapable of such a check.
Far from undermining democracy, the existence of an independent Supreme Court provides the only hope for redress against the ideologically driven agendas of unelected bureaucrats. Diluting the Supreme Court’s power would leave nothing more than a dictatorship of the liberal elites who think they should be allowed to do as they like, irrespective of the Constitution.
The Court Disregards Long-Held Precedent and Rule of Law
By Jeff Hauser – Executive Director, Revolving Door Project and Vishal Shanker – Senior Researcher, Revolving Door Project
Mr. Tobin’s claim that the Supreme Court is an independent bulwark against ideologically driven elites is naive. His obsessive focus on the unspecified tyranny of “unelected Left-leaning bureaucrats” is a red herring. In fact, it is the Supreme Court and the increasingly far-Right federal judiciary who are actually imposing unpopular, ideologically driven agendas at the behest of corporate elites.
The concern about a potential tyranny of the majority is overshadowed by the real harm the Court is currently causing by upholding a tyranny of the minority. The Supreme Court’s approval rating has been below 43 percent since its unpopular Dobbs ruling, which two-thirds of Americans disapprove of. Its recent decisions to grant presidents broad immunity and endanger long-standing regulatory protections will likely compound this trend. With 7 in 10 Americans now saying justices put their own ideology above impartiality, the Court has lost the consent of the governed outlined in our nation’s founding document.
The Supreme Court’s Power Is Riddled with Ethical Issues
Mr. Tobin’s claim that Judge Bork was unfairly demonized is specious. Bork lost because his fringe views on desegregation, his disastrous Senate testimony, and his role in Watergate doomed his nomination. In addition, Mr. Tobin’s dismissal of ethical scandals as an “invention of Democrats” is laughable.
Independent journalists from ProPublica and The New York Times have found that Justices Clarence Thomas and Samuel Alito accepted undisclosed luxury gifts and travel from Right-wing elites like Harlan Crow, Paul Singer, and Charles Koch. Neither Thomas nor Alito recused themselves from matters involving these benefactors’ business interests (including multiple cases involving Singer’s hedge fund and Crow’s real estate empire) or cases in which activist groups linked to these benefactors have engaged in judicial lobbying. A clear-cut example of corruption is Thomas’ reversal of Chevron doctrine after receiving gifts from anti-Chevron billionaires, including trips to Koch donor events where Thomas referenced working to overturn Chevron, a task he accomplished this June. These ethical scandals are as bad, if not worse than the one that toppled liberal Justice Abe Fortas in 1969. Yet Republicans are unwilling to hold Thomas and Alito accountable as Democrats did Fortas.
Debunking Bureaucracy’s Role
Finally, Mr. Tobin provides no evidence for his argument that the administrative state has become “an unaccountable fourth branch.” As we noted, Congress has regularly invoked its authority to overturn regulations and slash funding for executive agencies. The administrative state is also responsive to the appointees and priorities of elected presidents, giving the public a say in regulatory policy. This democratic accountability was one of the linchpins of the Chevron doctrine, with then-Justice Stevens noting that “federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do.” Chevron’s repeal is a dangerous expansion of the Supreme Court’s power, allowing highly ideological judges to act as regulatory experts, despite the Court’s own members not knowing the difference between air pollutants and laughing gas.
The Court has no regard for long-held precedent or the rule of law—only far-reaching power grabs that benefit its billionaire backers. The Supreme Court’s power must be curtailed.
About The Authors
Jonathan S. Tobin is the Editor in Chief of the Jewish News Syndicate (JNS.org) and a Senior Contributor for The Federalist as well as a columnist for Newsweek. He is also a contributor for Commentary magazine and other publications. He covers on a daily basis the American political scene, foreign policy, the U.S.-Israel relationship, Middle East diplomacy and the Jewish world as well as the arts. He is also the host of the JNS “Top Story” podcast, both the weekly video program and the Top Story Daily program, which are both heard on all major audio platforms and YouTube.
Jeff Hauser runs the Revolving Door Project, an organization dedicated to increasing scrutiny on many of the more subtle forms of corporate corruption of the political process. Before the Revolving Door Project, Hauser spent more than three years at the AFL-CIO. Hauser has extensive experience in politics, including working in elections and managing a lobbying team on behalf of immigration reform. He began his professional career as an antitrust lawyer at the U.S. Department of Justice. Hauser is a graduate of Harvard College and N.Y.U. School of Law.
Vishal Shankar is a Senior Researcher at the Revolving Door Project. He holds a B.A. in Political Science and Economics from the University of California-Berkeley. His work has appeared in The American Prospect and Common Dreams. He has also been interviewed on the Ralph Nader Radio Hour and quoted in The New Republic, TYT, The Lever, and the Capitol Hill Citizen.
