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Does SCOTUS have a moral obligation to answer Congress?

SACHA PFEIFFER, HOST:

This is the week the Senate Judiciary Committee wrestled with some of the ethical questions surrounding the Supreme Court and the laws and standards that govern the behavior of this country's judges.

(SOUNDBITE OF ARCHIVED RECORDING)

DICK DURBIN: We are here today because the Supreme Court of the United States of America does not consider itself bound by these rules.

PFEIFFER: That's committee Chair Dick Durbin, a Democrat. He had sent Chief Justice John Roberts an invitation to testify there, but Justice Roberts said he, quote, "must respectfully decline." Jamelle Bouie argues in a recent op-ed for The New York Times that that exchange illustrates what he calls a key reality of American politics today. Quote, "our Supreme Court does not exist in the constitutional order as much as it looms over it." Jamelle Bouie joins me now. Thanks for coming on the show today.

JAMELLE BOUIE: Thank you for having me.

PFEIFFER: Jamelle, you argue that even with co-equal branches of government and separation of powers, the Supreme Court has some obligation to Congress. What obligation do you think the court has to Congress in a situation like this?

BOUIE: It has an obligation to speak forthrightly with Congress when Congress requests that it do so. And although there is no formal obligation for the courts to go before Congress, in the same way there isn't really a formal obligation for a member of the executive branch to go before Congress, the general norm is that when Congress calls in this way, the respective branches - they should answer, not just as a common courtesy but as an affirmation of that constitutional order, even if the branches are co-equal.

PFEIFFER: But in this case, John Roberts has said, no, I'm not going to do that. Are you making a case that that's a flaw in our system that he's able to decline?

BOUIE: I don't think it's necessarily a flaw, but I do think the comfort with which Chief Justice Roberts felt to decline - I think it does say something about the place of the judiciary, particularly the Supreme Court, in the American system. And that is the Supreme Court has simply accumulated a great deal of authority. And so I think the refusal here isn't some flaw in our system, but it's a sign of how the court has become a little more than an equal relative to the other branches.

PFEIFFER: Now that Roberts has rebuffed Congress, what do you think Congress should do at this point? It does have the ability to subpoena a justice but probably not enough votes to do it. So what options is it left with?

BOUIE: Congress can do a lot, theoretically to, let's say, discipline the court. The Senate can subpoena Roberts. It can subpoena any of the justices. Congress can alter the court's budget. I think Congress can increase the size of the court - lots of things Congress can do. But those all are dependent on having the votes to do so, and Congress doesn't have the votes to do so. So in terms of practical things Congress could do, forthrightly saying that the court is behaving in unethical ways or members of the court and making that argument to the public - but basically, outside of information and stagecraft, there isn't a ton practically Congress - or the Senate, for that matter - can do barring Democrats regaining a majority in the House and keeping the White House in hand.

PFEIFFER: What does all of this mean for the legitimacy of the Supreme Court, public trust in the court, democracy at large? I'm wondering what you think this has done in the public's eye in terms of the court's legitimacy.

BOUIE: For the members of the court, who presumably want to maintain their legitimacy and presumably want to be able to still have an influence on the shape of American society, on the shape of American law, I think that these recent ethics scandals involving Justice Clarence Thomas in particular - I think the Dobbs ruling and the Bruen rulings from last year about abortion rights and gun rights have dealt a serious blow to the court's reputation and standing. And so the more the court issues rulings that run counter to people's basic intuitions about how the system should work and what they should be able to do within it and as long as members of the court show kind of a disregard for, if not ethics, then ethical propriety, then the court's going to find that the public is just going to be less willing to listen to it and take it seriously.

PFEIFFER: That's Jamelle Bouie, a columnist for The New York Times opinion section. Thank you.

BOUIE: Thank you. Transcript provided by NPR, Copyright NPR.

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Jonaki Mehta is a producer for All Things Considered. Before ATC, she worked at Neon Hum Media where she produced a documentary series and talk show. Prior to that, Mehta was a producer at Member station KPCC and director/associate producer at Marketplace Morning Report, where she helped shape the morning's business news.
Christopher Intagliata is an editor at All Things Considered, where he writes news and edits interviews with politicians, musicians, restaurant owners, scientists and many of the other voices heard on the air.
Sacha Pfeiffer is a correspondent for NPR's Investigations team and an occasional guest host for some of NPR's national shows.
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