Witham: Power should remain separate between Congress and Supreme Court


I write in response to Dr. Samuel B. Hoff’s opinion, appearing in the Delaware State News (“Supreme Court, Congress is still your daddy,” Sept. 10). He may have misled the reader a wee bit. He is incorrect in implying that ethics rules designed for federal jurists apply to the Supreme Court. They don’t, yet the court does have internal ethics principles and practices to control participation in cases. The Supreme Court is unlike any other federal or state court. It is a court with appellant power only, except in a very few original-jurisdiction cases, such as contempt of court and issues between states, foreign and domestic.

Our Founding Fathers designed the three branches of our government — Congress, the executive branch and the Supreme Court — with specific powers as co-equal or as a tripartite government. Dr. Hoff seems to view the placement in the order outlined in the Constitution means that somehow this implies the order of importance. One would find it difficult to find in the original constitutional debates or in the Federalist Papers support for this view. The Founders intended to create a separation of powers for each branch of government. Recusal issues arise as a consequence of this unique and history-making design, as well as with the broader question of the nature and dynamics of interbranch relations in the tripartite government.

The opening lines of Article 3 state, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish.” Thus, Congress only has power to establish inferior federal courts and prescribe the jurisdiction and venue. The second phase of this line clearly indicates that this is the extent of direct congressional power and is supported by case law. I would agree that the state, federal and Supreme courts are bound by the Constitution, as stated in Article 6 of the Constitution, but this adds nothing to Dr. Hoff’s argument.

What is clear is that direct congressional regulation of Supreme Court recusal violates the separation of powers. Congress should focus on more indirect constitutional tools — such as impeachment, procedural reform, judicial confirmation, appropriations and investigation — to influence the justices’ recusal practices. It would be difficult, if not impossible, for Congress to “clean up the mess” with this partisan membership.

William L. Witham Jr.


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