Legal expert reveals the 'only effective way' to hold Supreme Court justices accountable

13 July 2024

The 6-3 conservative supermajority on the Supreme Court of the United States (SCOTUS) has been instrumental in helping the far right accomplish its political goals in the Court's most recent term, and little is standing in its way of continuing to deliver huge wins to Republicans in the future. One scholar of the Court has revealed the one tool that President Joe Biden and Democrats in Congress have to make the Court more accountable.

During a Saturday interview with MSNBC host Ali Velshi, George Washington University law professor Jeffrey Rosen, who is president and CEO of the National Constitution Center, said historical precedent has found just one method to rein in a rogue Supreme Court: Expanding its size.

"Basically, the only effective way of checking the Court over American history has been to change the size of the Court. Congress has changed the size in the [Thomas] Jefferson, [Andrew] Jackson, [Abraham] Lincoln, FDR, [Ulysses S.] Grant eras, and if it had the votes, it could try to do that now, but President [Joe] Biden has walked away from that," Rosen said.

Rosen explained that other ideas that have come up to hold SCOTUS accountable — like a binding code of ethics that can be enforced by Congress or appointing a special prosecutor to investigate judges — likely wouldn't work. He noted that members of the nation's highest Court have the power to simply ignore those efforts, or rule that they're illegal.

"It's so interesting, the claims that Justice [Clarence] Thomas could be subjected to a special prosecutor," Rosen said. "He said in the Trump immunity decision that the special prosecutor law itself was unconstitutional... So many of the things that Congress is considering, forcing the Court to adopt an ethics reform, the Court itself might strike down and repudiate."

"In practice, it means it's just very hard to think of an effective way to check the Court. And without the votes in Congress, there's no clear path forward," he added.

In a recent thread on social media platform Bluesky, Penn State University historian Rachel Shelden detailed how past Court expansion methods worked in practice. She wrote about how in the 19th century, the Court was literally representative of the federal circuits, in that each circuit sent a judge to SCOTUS. By contrast, there are only nine Supreme Court justices today, despite there being 13 federal circuits.

"When a vacancy occurred on the Court, it was filled by a resident of the corresponding circuit," she wrote. "Reform calls were framed as necessary to correct injustices by an unrepresentative Court."

"19th [century] Americans did not believe these demands threatened the 'independence' or 'impartiality' of SCOTUS; quite the opposite! They didn't expect justices to simply vote for regional demands but they did fear an elite court separated from the people," she added. "Circuit riding & balance prevented that outcome."

Watch Rosen's segment below, or by clicking this link.

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