Legitimacy w.r.t. what? What is it that the Supreme Court has that congress is lacking?
A basic perception of goodwill and competence?
The Supreme Court has a very narrow mission statement, and it generally executes on it well.
Congresspeople sabre rattle on TV, submit symbolic legislation with poison pills and take turns abstaining on legislation they don't want passed but their constituents do, and hide whatever they want to pass in unrelated legislation (budgets, usually). They eagerly devolve every responsibility they can to the executive branch, and seem incapable of voting against their own or the intelligence community's interests.
The only principled one seem to be single-issue legislators who couldn't tell the ass-end of a horse from its head if it was unrelated to their obsession.
During depositions they spend more time chasing soundbites and executing partisan jabs than trying to extract any information in the public interest.
Many of them seem to care more about the rest of the country than they ever could about their district or their states.
Edit:
As a punctuation, here's the late John McCain's wife saying 'we all knew', wrt Eptsein
I think the arguments (that go against yours) in this article are relevant: https://www.newyorker.com/news/our-columnists/the-case-for-e...
But molany of the examples he cites are exactly what the Supreme Court is suposed to be doing, serving to moore the federal government's reach into daily life, and local governance by interpreting the constitution, and leveraging historical precedent.
Initial appointment is inevitably a political affair. But once the justice is in, the justice is in, and you pray that their interpretation of law is what you wanted it to be, because you're not going to remove them.
Now, you could argue that the Supreme Court will increasingly lose its legitimacy, since a filibuster is no longer enough to prevent an overtly politically motivated appointment.
You could also argue thattimes have changed, and the relatively degenerate state of state level authority means that the confirmation process should be moved to the house, rather than the senate.
But these would be relatively new criticisms and proposals that have yet to be spread and be internalized widely enough as to make the whole institution illegitimate in the public's eye.
For example RBG has said several times that roe v wade was wrongly decided. An impartial judge would therefore believe in striking it down but she voted not to do so several times. Unfortunately many justices still believe that their job is not solely to interpret laws established via democratic processes.
https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1869
Congress has already established the composition and the procedures of the court. Of course it has that power.
All money spent by the federal government in all three branches, including on judicial clerk compensation salaries, is determined by Congressional authorization and congressional statutes regarding employment and compensation. Congressional statute law heavily regulates hiring throughout the executive branch, despite that being a separate branch of government from Congress. There's no reason the judiciary is any different.
What's more, while the procedural rules of the federal courts are mostly set by the federal courts themselves, this is done under the authority of an act of Congress, which has been amended several times both to increase and reduce the courts' self-regulatory authority. As for the Federal Rules of Evidence, Congress refused to allow the version of those which the Supreme Court originally approved to go into affect, and then they later passed a substantially altered version as an Act of Congress.
The Constitution itself makes explicit Congress's ability to regulate the Supreme Court's appellate jurisdiction (which applies to almost all of its docket) and even to reduce the scope of that jurisdiction. And it has pretty plenary power to add, remove, and restructure the inferior federal courts, aside from whatever tenure protections apply to individual judges who have not been impeached by the House and removed from office by the Senate.
And, as others have said, the Senate even individually approves federal judges as per its constitutional mandate under the appointments clause. This is certainly not a separation of powers violation.
Congress can ordain and establish inferior courts, and can regulate the appellate jurisdiction of the Supreme Court. However, it cannot regulate much of the judiciary outside that. For one, it cannot expand the Supreme Court's original jurisdiction. Marbury. Nor can it dictate how the court applies the law. Klein. Congress's power over the federal judiciary is constrained and there is no basis in the text of the Constitution or in any case law to support your position.
However, I think a variation of the idea would be constitutional: within the Supreme Court, Congress creates two divisions for purposes of appellate jurisdiction cases (they would stay unified for original jurisdiction cases to avoid a constitutional problem). Justices would be assigned to only one or the other, no overlap. One division handles constitutional appeals, one division handles other cases.
Congress could also remove the appellate jurisdiction of the court to hear claims that laws are unconstitutional, leaving the only appellate jurisdiction as claims that officials are acting illegally or unconstitutionally or disputes of lower-level decisions as incorrect.
I'm not saying this is necessary good policy, but it would be constitutional.
Yes, it does. Jurisdiction literally means the ability to say what the law is. There is no plausible definition of appellate jurisdiction in the Anglo-American legal tradition that would not involve the power and duty to reconcile incompatible sources of law.
> Congress could also remove the appellate jurisdiction of the court to hear claims that laws are unconstitutional
No, it cannot. First, the power to make "exceptions" does not imply the ability to completely remove power. Second, whatever power Congress had under Article III was limited by later amendments, e.g., it cannot remove jurisdiction in a way that results in an impingement on the right to due process under the Fifth Amendment. There is nothing in the text of the Constitution nor in any case law that would support your implicit contention that Article III is somehow immune to being subject to the amendments process.
Third, although Klein has been a bit disfavored lately, it was reaffirmed in Patchak only a couple years ago. Some commentators focus on the plurality opinion while ignoring the fact that they're only a plurality and not the dissent because of Ginsburg's and Sotomayor's concurrence. That opinion interpreted Congress's intent generously and reasoned that Congress merely amended its waiver of sovereign immunity rather than dictated a result in a particular case. Of note, the concurring opinion explicitly agreed in principle with the "dissent," and they still ruled substantively on the merits notwithstanding Congress's attempt to strip jurisdiction.
If you'd like to continue this, please read Chemerinsky's excellent hornbook on federal jurisdiction first. And, you know, maybe go to law school.
I'm not disagreeing with the other examples you gave, including about original jurisdiction - clearly separation of powers and the constitutional structure are both real and binding. But equally, those concerns don't prevent the kind of personnel regulation we're discussing.
But the power and precedent exists — see the Pendleton Civil Service Act. Even in these times, the federal bureaucracy is a significant barrier to systematic corruption and patronage.
More seriously, I'm not convinced moving this to a Senate subcommittee would lend any more legitimacy to the system. As evidence I present what Senate Republicans did to stonewall Obama appointees at the end of his last term so that McConnell et all could push through dozens of 30 year old reactionary freaks to lifetime appointments.
Is John Roberts going to whip out his checkbook to cover payroll?
Party politics has become an increasingly tit for tat series of one side violating a norm, followed by the other side one-upping them.
It's basically a war of attrition at this point.
Republicans are going to push through a new court appointee, largely "because fuck you, that's why."
If Democrats win control of either the Presidency or the Senate, expect them to do something similar. Also simply "because fuck you."
At some point it's going to all boil over, and who knows where that will end up.
Unfortunately, that requires adults who can work together and a public that can deal with nuance.
And betray on the last round, because that can only help you.
But since that means everyone should betray on the last round, everyone should also betray on the second last round since that won't effect your opponents behavior next round anyways (they're already going to betray).
And the third from last round.
And fourth...
And... actually just always betray.
Simple computer algorithms do not fully capture the real world. And the simple algorithm that happens to have won a single tournament in which players could not see what other players were doing and adjust their strategy is not going to translate well to the real world.
So literally nothing like the prisoner's dilemma, iterated or otherwise.
Unfortunately it creates a self-perpetuating situation. The rationale is understandable. People always prefer the familiar to the unfamiliar. But it leads to these situations.
One possible fix would be for Congress to remove the justices' right to select their own clerks, and for that selection to be moved to a third-party, like the Senate Judiciary Committee or the Justice Department.