Law professor: Congress 'constitutionally mandated' to regulate the Supreme Court
During Tuesday's United States Senate Judiciary Committee hearing on establishing a Supreme Court code of ethics, Amanda Frost — the Ann Loeb Bronfman Distinguished Professor of Law and Government at American University in Washington, DC — explained why Congress has the constitutional authority to regulate the Court.
"So the separation of power's argument, I find, it confuses me because, of course, I think we all know from, you know, civics classes, separation of powers is of course a constitutional principle, which means that the branches should have some separate spheres of conduct and some separate roles in our constitution. But checks and balances is equally important, and the role of the Congress is to establish the Supreme Court. It's not just permitted, it's required," Frost said.
"The Supreme Court of the United States is constitutionally mandated under Article Three. But there is no detail about how it is to operate because that was left to the Congress of the United States under Article One, Section Eight, the Necessary and Proper Clause, and immediately Congress agreed to do that in the Judiciary Act of 1789, as it was required to do," Frost explained.
"The Congress sets the size of the Supreme Court," Frost continued. "That is not in the hands of Chief Justice Roberts and his colleagues. Congress establishes the quorum requirement. That is not in the hands of Chief Justice Roberts and his colleagues. When this Congress says, passes a law that says that they must recuse themselves, the judges and justices of our federal judiciary, when there are certain conflicts of interest, the justices are not free to say, 'That law doesn't apply to me, I'm going to sit on that case anyway,'" Frost added. "And so what is troubling is there is an implication in the recent statement of policy of ethics policies as well as some previous statements by the court that it doesn't think these laws bind it. And I find that very confusing in light of the tax structure and long history of congressional administration of the courts."
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\u201cLaw professor Amanda Frost quickly shuts down arguments that the separation of powers doesn\u2019t give Congress the ability to enact ethics reforms over the Supreme Court, explaining how checks and balances between the branches are key\u201d— NowThis (@NowThis) 1683041308
