2023-06-14 PM - Testimony - Mascott

“Ensuring an Impartial Judiciary”
Subcommittee on Federal Courts, Oversight, Agency Action, and Federal

Rights
U.S. Senate Committee on the Judiciary
June 14, 2023
Prepared Testimony of Jennifer L. Mascott

Assistant Professor of Law & Co-Executive Director of the C. Boyden Gray
Center, George Mason University’s Antonin Scalia Law School
Dear Chairman Whitehouse, Ranking Member Kennedy, and Members of the

Subcommittee,
Thank you for the invitation to testify about constitutional separation
of powers questions related to the role of Congress in regulating the federal
judiciary.1 This statement reflects much of the prepared statement that I
provided to the subcommittee in May 2022 just prior to the leak of the Dobbs
opinion, as a focus on that deep breach of Supreme Court confidentiality
overtook the discussion of Chairman Whitehouse’s proposed legislation in the
May 2022 subcommittee hearing.
My areas of academic expertise include constitutional law, separation
of powers, federal courts, and legal interpretation. Previously I served as an
Associate Deputy Attorney General and a Deputy Assistant Attorney General
in the Office of Legal Counsel at the Department of Justice. I am a Public
Member of the Administrative Conference of the United States and Vice
Chair of the American Bar Association’s Subcommittee on Constitutional
Law and Separation of Powers.
My testimony will focus on the constitutional and statutory roles of
Congress and the federal courts in structuring, authorizing, and carrying out
1 This analysis represents my personal scholarly views as an academic and does

not reflect any official position on behalf of my state government employer, the Scalia
Law School of George Mason University.
1
the exercise of judicial power under Article III of the U.S. Constitution.2 The
Article III judiciary has a critical role to play in the resolution of concrete
cases and controversies through the application of the rule of law.3 Congress
has a constitutional role in regulating and establishing the jurisdiction and
structure of federal courts through its Article I authority to establish inferior
federal tribunals and to make “necessary and proper” Laws for “carrying into
execution” the judicial power.4 That role is more constrained with respect to
the federal “supreme Court,” whose existence the Constitution explicitly
specified and mandated.5
A number of legal scholars have observed that Congress’s regulation of
the federal judiciary must have a necessary and proper relationship to the
exercise of federal judicial power as Congress’s power to legislate regarding
Article III courts derives from its authority to establish tribunals to carry out
the discrete judicial power to resolve cases and controversies.6 In contrast to
other Article I, Section 8 congressional powers like the authority to regulate
interstate and foreign commerce that Congress has the discretion to carry out
as it sees fit, scholars have indicated that the discretionary aspects of the
exercise of judicial power are to be left by Congress to the judiciary.7 As a
2 See U.S. Const. art. III, section 1 (“The judicial Power of the United States, shall
be vested in one supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish.”).
3 See U.S. Const. art. III, section 2.
4See U.S. Const. art. I, section 8 (vesting in Congress the powers to “constitute
Tribunals inferior to the supreme Court” and to “make all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof”).
5 Compare U.S. Const. art. III, section 1 (“shall be vested in one supreme Court”),
with id. (“may from time to time ordain and establish”).
6 See, e.g., Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 839-
46 (2008) (suggesting that there may be a certain core constitutional minimum of
supervisory authority that courts must maintain over their operations that Congress
would lack the authority to regulate even if it had the political will to do so); Gary
Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-Making,
18 Const. Commentary 191 (2001); David E. Engdahl, Intrinsic Limits of Congress’
Power Regarding the Judicial Branch, 1999 BYU L. Rev. 75 (1999).
7 See David E. Engdahl, Intrinsic Limits of Congress’ Power Regarding the Judicial
Branch, 1999 BYU L. Rev. 75, 101-02 (1999). Moreover, as a matter of historical
practice, dating back to the first federal Congress the House and Senate authorized
federal courts to devise their own procedural rules subject to significant discretion.
See, e.g., Rules Enabling Act of 1934; Judiciary Act of 1789, section 17 (“And be it
2
coequal branch of government, the federal judiciary is not subordinate to
Congress and independently maintains its constitutionally vested judicial
authority.8
Evident from the constitutional text, that discrete role within the
federal structure is significantly distinct from the role of the executive and
legislative branches charged with formulating and carrying out federal policy
requirements. Given this constrained and constitutionally limited role, the
Article III judiciary is the one federal branch whose members are not directly
selected by an electoral process. The independent operation of the judiciary
and the protection of its members through life tenure and salary protection
mean that the judiciary properly exists independent of a number of the public
accountability and transparency requirements that the Constitution and
federal statutes apply to Congress and the executive.
For example, in contrast to the U.S. House and Senate, the
constitutional text does not subject the federal judiciary to mandatory
disclosure requirements. Article I, section 5 of the U.S. Constitution requires
Congress to keep and publish a journal of its proceedings and to publicly
record votes upon the request of one-fifth of its members that are present.
The Article III judiciary is not subject to similar requirements, given the
absence of any role of the public in the continuing selection of already-
appointed members of the federal judiciary who are charged with the
apolitical resolution of cases and controversies. Federal courts are not
charged with the creation of new legislation and policy binding the American
public, so the Constitution does not impose public records requirements on
the judiciary like those imposed on Congress.
The absence of constitutional reporting mandates for the federal
judiciary from the constitutional text does not itself prohibit the statutory
creation of such requirements. But the imposition of any legislative
further enacted, That all the said courts of the United States shall have power . . . to
make and establish all necessary rules for the orderly conducting business in the said
courts, provided such rules are not repugnant to the laws of the United States.”).
8 See, e.g., U.S. Const. art. III, section 1 (“The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated
Times, receive for their Services, a Compensation, which shall not be diminished
during their Continuance in Office.”).
3
reporting, ethics, and recusal requirements must properly and necessarily
relate to the carrying out of judicial power.9
The current draft of the Supreme Court Ethics, Recusal, and
Transparency Act would require the Supreme Court and the Judicial
Conference to provide for a public notice and comment period when modifying
judicial rules of conduct.10 This requirement is unwise and inconsistent with
the federal judiciary’s role to adjudicate cases independent of political
headwinds and considerations. In addition, the participation of the public in
crafting judicial codes would be unwieldy and burdensome and ultimately
hamper the functioning of the currently independent judiciary.
The draft legislation’s provisions to permit individual members of the
public to file ethics complaints contending that individual Supreme Court
justices have violated federal law raise similar concerns.11 Such a
mechanism is in significant tension with the Constitution’s core protection for
the independent judiciary through lifetime tenure and salary protections and
the constitutionally prescribed, and carefully tailored, impeachment
procedures to address judicial misconduct.12
In addition, the proposed Act’s provisions subjecting Supreme Court
justices to the review and supervision of members of lower federal courts
raise significant separation of powers and constitutional accountability
concerns, along with the disruption they would likely pose to the operation of
the federal judiciary.13 In his landmark work on constitutional interpretation
and structure, Intratextualism, Yale Law Professor Akhil Amar explains the
position of “inferior” federal tribunals in relation to the Supreme Court and
observes that by its terms the Constitution subordinates such tribunals to a
federal supreme court.14 Similar to the Constitution’s reference to “inferior”
federal officers, the Article I and Article III references to “inferior” federal
tribunals connote bodies that are under their superior, the federal supreme
tribunal. Reporting, ethics, and recusal codes that subject Supreme Court
9 Cf. U.S. Const. art. I, section 8 (Necessary and Proper Clause).

10 See, e.g., proposed 28 U.S.C. § 365.
12 Cf. U.S. Const. art. I, section 2, clause 5; id. art. I, section 3, clauses 6-7; id. art.
II, section 4 (impeachment provisions).
14See Akhil Reed Amar, Intratextualism, 112 Yale L.J. 747, 748-49, 759-60, 806-07
(1999).
4
justices to review by subordinate actors are outside the constitutionally
permissible federal structure and in tension with the constitutional text.
Finally, as a policy matter, it is not clear why Congress should impose
burdensome reporting and procedural requirements on the Supreme Court.
Evidence suggests that the Article III judiciary currently is a solidly stable
and well-functioning branch of federal government. The number of seats on
the Supreme Court has been steady for more than 150 years, over the past 10
terms at least 35 percent of the Court’s judgments in merits cases have been
unanimous,15 and the Court’s decisions are transparent in the level of
detailed explanation that the Court provides in written opinions when it
resolves orally argued cases. President Biden began his Administration with
an effort to probe whether the Supreme Court needs significant reform, and
the president’s reform commission saw no unified mandate to urge far-
reaching reform, advising instead that many of the suggested structural
changes to the Court that the Commission evaluated would “offer uncertain
practical benefits.”16
If Congress nonetheless determines to regulate the practice and
exercise of federal judicial power, enactment of legislation related to the
subject matter jurisdiction of federal courts and their remedial authority
would be more impactful and more consistent with historical federal practice
than the generation of new reporting and recusal requirements.17 Congress
could also legislate with more specificity when enacting federal law to provide
even greater clarity about the federal policies it is authorizing, thereby
avoiding the impetus for courts to apply the discretionary canons and
interpretive tools that statutory ambiguity often purportedly triggers.
Further, the tension of significantly powerful, non-electorally responsive
federal courts would be alleviated if the federal government reduced its
sphere of governance across the board, permitting more space for individual
states and local communities to govern and operate.
15 See Statistical Analysis on Unanimity, SCOTUSblog, available at

https://www.scotusblog.com/wp-content/uploads/2021/07/Final-Stat-Pack-7.2.2021.pdf.
16See Presidential Commission on the Supreme Court of the United States, Draft
Final Report at 7–8 (Dec. 2021), available at https://www.whitehouse.gov/wp-
content/uploads/2021/12/SCOTUS-Report-Final.pdf.
17Cf. Michael T. Morley, Disaggregating Nationwide Injunctions, 71 ALABAMA L.
REV. 1 (2019); Samuel L. Bray, Multiple Chancellors: Reforming the National
Injunction, 131 HARV. L. REV. 417 (2017).
5

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“Ensuring an Impartial Judiciary”

Subcommittee on Federal Courts, Oversight, Agency Action, and Federal

Prepared Testimony of Jennifer L. Mascott

Dear Chairman Whitehouse, Ranking Member Kennedy, and Members of the

1 This analysis represents my personal scholarly views as an academic and does

9 Cf. U.S. Const. art. I, section 8 (Necessary and Proper Clause).

15 See Statistical Analysis on Unanimity, SCOTUSblog, available at

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