How to reform the Supreme Court without court-packing

Republicans are poised to gain a 6-3 majority on the Supreme Court, something that will enable any five of the Republican-appointed justices to strike down policies supported by Democrats.

If Democrats take back the White House and Congress, however, they have several potent tools that they can use to defend against a 6-3 Court. The most potent is court-packing: add enough seats to the Supreme Court to overwhelm the Court’s current majority, and then fill those seats with judges who support voting rights and are not inclined to strike down progressive legislation.

Although the Constitution provides that there must be a Supreme Court, it does not say how many justices shall serve on that Court. Over the course of American history, the Court has had as few as five seats and as many as 10. President Franklin Roosevelt proposed increasing the number of seats to 15 back in 1937 — although that proposal proved unpopular, and it died in Congress in no small part because the Supreme Court backed away from several previous decisions that undermined the New Deal.

Even if Democrats crush the 2020 election, however, it’s far from clear that they will have the votes to pack the Court. Though Democratic presidential nominee Joe Biden hasn’t ruled out adding seats to the Court, he’s said that he’s “not a fan of court-packing.” And packing the Court brings considerable risks — the biggest is that Republicans could retaliate by adding even more justices if they regain control of the elected branches.

If Democrats refuse to pack the Court, they still have other, less potent options. They run the gamut, from rebalancing the Court with Republicans, Democrats, and moderates to passing legislation to override Court decisions to the more drastic step of states simply refusing to obey certain rulings.

Many of the ideas laid out below are radical. So it’s worth taking stock of why such radical ideas need to be considered at all. Simply put, the American system of government is not producing democratic results. And it’s likely to get much worse if the Supreme Court has a 6-3 Republican majority.

Republicans owe their majority on the Supreme Court to our failing democracy. In 2012, President Obama won reelection by a comfortable margin. However, his fellow Democrats lost control of the Senate in the 2014 midterms, a testament to Senate malapportionment. Republicans in the Senate that blocked Obama Supreme Court nominee Merrick Garland’s confirmation in 2016 represented about 20 million fewer people than their Democratic counterparts.

Since then, Donald Trump lost the popular vote in 2016 and Republicans have hung on to the Senate. The first Supreme Court justice in American history to be nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country is Trump’s first appointee, Neil Gorsuch. The second is Trump’s second appointee, Brett Kavanaugh. And the third is likely to be Trump nominee Amy Coney Barrett.

The conservative Supreme Court majority is likely to further entrench Republican rule. The Court weakened much of the Voting Rights Act, the principal law forbidding racist voter suppression, in Shelby County v. Holder (2013) and in Abbott v. Perez (2018). This term, it plans to hear a new voting rights case that could potentially render the Voting Rights Act little more than an empty husk.

And the anti-democratic threat goes beyond voting decisions. The Court is the one unelected branch of government, but it has the power to decide who receives potentially lifesaving health care and who is denied such care. It can veto our efforts to protect the environment, give its blessing to discrimination, and even decide who we are allowed to marry.

Many of the following proposals seek to weaken the Supreme Court — and that might be the most important pro-democracy reform that America could enact. A party that wins a presidential race should get to govern for four years, not for 40. But, in our current system, a president who is lucky enough to fill enough Supreme Court seats can continue to shape our nation’s policy long after they are gone.

Ways to change the makeup of the Supreme Court without giving a clear advantage to one party

Assuming that the next Congress does not have the votes to simply add new seats to the Supreme Court and let a Democratic president fill them, Congress still has several options that could change the makeup of the Court in ways that are less overtly partisan.

1) A “balanced” court

One of the leading alternatives to simply adding and filling new seats on the Court with Democratic judges is still a form of court-packing. But the aim is to create a politically balanced Court where neither party dominates.

In a 2019 paper, law professors Dan Epps and Ganesh Sitaraman proposed a 15-justice Court made up of five Democrats, five Republicans, and five justices chosen by the other 10. The idea behind this proposal, which Pete Buttigieg featured during his bid for the Democratic presidential nomination, is that the balance of power on the Supreme Court would be held by moderate judges acceptable to both political parties.

There are a number of concerns about this proposal. One is that it is likely to be declared unconstitutional. The Constitution gives the president the power to appoint new justices; it does not give that power to a panel of 10 other justices.

A more fundamental problem is that any attempt at court-packing, even an attempt that installs a centrist Supreme Court, is likely to enrage Republicans and invite retaliation if Republicans regain control of the government. And there’s no guarantee that a centrist Court will overrule the Roberts Court’s previous decisions undercutting voting rights. Democrats could wind up triggering all the downsides of packing the Court, without gaining the benefits of a more democratic system.

That said, if the alternative to a balanced court controlled by moderates is a 15-justice Court with a Democratic supermajority, perhaps Republicans will be willing to negotiate a compromise. And a balanced Court proposal similar to the one offered by Epps and Sitaraman could potentially be that compromise.

2) The “Supreme Court lottery”

A separate proposal from Epps and Sitaraman would transform the Supreme Court from a permanent panel of nine justices to an ever-changing panel of judges. These judges would briefly rotate onto the Supreme Court before returning to their regular job on a federal appeals court.

The basic idea is that each of the approximately 180 active federal appeals court judges would be appointed as associate justices of the Supreme Court. Then, every two weeks, nine of these judges would be randomly selected to serve on the nation’s highest Court. After two more weeks, a different panel of nine would be selected. (In this system, the current justices could also be eligible to rotate onto a temporary panel of nine, but they would no longer sit permanently on that panel.)

It may seem random, but this is more or less how federal appeals courts already operate. Most appeals court cases are heard by randomly selected panels of three judges, although a larger panel consisting of all the active judges on the court will occasionally hear exceptional cases.

One problem with this proposed lottery system from a Democratic (and democratic) perspective is that the rotating Supreme Court panel would, at least in the short term, more often than not be controlled by Republicans who may share the current Court’s hostility toward voting rights. There are currently 179 active appeals court judges in the United States, and 99 of them were appointed by a Republican president.

And there’s no guarantee that a panel of anti-democratic radicals won’t be randomly chosen to hear a crucial voting rights case — or that such a panel won’t sit during a disputed election.

In the long term, however, a rotating Supreme Court could, in Epps and Sitaraman’s words, “depoliticize the appointments process by making confirmations more numerous and less consequential.” And it would mean that individual justices “would no longer have the ability to shape constitutional law for a generation by strategically timing their retirement” so that their seat is filled by a president of their same party.

3) Term limits

Another way to prevent justices from “strategically timing their retirement” is term limits.

The leading term limits proposal, which has at times enjoyed support from prominent Democrats and Republicans, would require each justice to step down after 18 years. Reps. Ro Khanna (D-CA), Don Beyer (D-VA), and Joe Kennedy III (D-MA) recently introduced legislation that would implement 18-year term limits. Terms would be staggered so that a justice steps down every two years, meaning that two justices would be replaced during each presidential term — although whoever is president when this proposal is implemented might get to replace more justices depending on how Congress decided to manage the transition to the new system.

If such a proposal were implemented on the first day of a Biden presidency, Biden might immediately get to replace Justices Clarence Thomas and Stephen Breyer, both of whom have served more than 18 years. The next justice in line to leave the Court would be Chief Justice John Roberts.

It is far from clear, however, that term limits may be imposed on a sitting justice. The Constitution provides that federal judges “shall hold their offices during good behaviour,” and the particular “office” held by each of the current justices is a seat on the Supreme Court for life. (Future justices could probably be term-limited, on the theory that they are being confirmed to a different “office” that only allows them to sit on the nation’s highest Court for 18 years before they are rotated onto a lower court.)

Moreover, even if there is a constitutional way to impose term limits on sitting justices — Yale Law School’s Jack Balkin has a clever proposal to achieve this goal — the question of whether sitting members of the Supreme Court can be subjected to term limits would be decided by, well, the Supreme Court. And it’s unlikely that a majority of sitting justices would willingly agree to term limits.

Ways to weaken the Supreme Court

As an alternative to changing the personnel on the Supreme Court — or, perhaps, in addition to changing the personnel of the Court — Congress might also enact several reforms that seek to diminish the Supreme Court’s nearly unchecked power to hand down binding interpretations of the Constitution.

The president may also be able to diminish the Court’s authority by refusing to enforce particularly egregious Supreme Court decisions.

4) Jurisdiction stripping

The Constitution gives the Supreme Court power to hear most federal cases on appeal from a lower court, but it may only assert jurisdiction over cases “with such exceptions, and under such regulations as the Congress shall make.” Accordingly, Congress has at least some power to tell the Supreme Court that it is not allowed to hear certain cases.

But it’s not entirely clear how much power Congress has to limit the Court’s power to hear particular cases. Congress has unlimited power to restrict the jurisdiction of lower federal courts — a power that a Democratic Congress could use to prevent Trump-appointed trial judges from blocking new progressive laws as soon as those laws are enacted. But the Supreme Court’s decisions concerning Congress’s power to limit the high Court’s jurisdiction are not a model of clarity.

In Ex parte McCardle (1868), the Supreme Court held that it did not have jurisdiction over a case, brought by a newspaper publisher who claimed that he was wrongly jailed for publishing attacks on Reconstruction, because Congress enacted a law stripping the Court of jurisdiction to hear this case.

McCardle, however, is an old case. And the opinion in that case does not explain the Court’s reasoning in much detail. In the many years since McCardle, many scholars and at least some justices have argued that Congress’s power to limit the Court’s jurisdiction is not unlimited. Concurring in Felker v. Turpin (1996), for example, Justice David Souter suggested that Congress may only be able to prevent the Court from hearing a particular case if there is some other way that the issue presented by that case could reach the justices.

In any event, there are two closely related problems with this tactic — known as “jurisdiction stripping” — as a solution to a partisan Supreme Court. The first is that the question of whether Congress has the power to enact a particular jurisdiction-stripping law will be decided by the Court itself — so the justices may simply strike down an act of Congress that seeks to limit the Court’s jurisdiction.

The other problem is that most federal statutes do not enforce themselves — they need to be applied to individual parties through court orders. Congress might be able to prevent the Supreme Court from striking down the Voting Rights Act, for example, by stripping the Court of jurisdiction to hear voting rights cases. But if voting rights plaintiffs cannot obtain a court order enforcing the Voting Rights Act, then that law ceases to function.

5) Supermajority voting requirements

In a forthcoming law review article, law professors Ryan Doerfler and Samuel Moyn propose that Congress could require a supermajority of justices to vote to strike down federal laws. This proposal could potentially be implemented in two different ways: Congress could either impose a universal rule requiring a 7-2 majority on the Supreme Court to strike down a federal law, or identify particular laws, such as the Affordable Care Act, which can only be struck down by a supermajority.

Such a law would need to be coupled with provisions stripping the lower courts of the power to strike down such laws, or else judges on the lower courts could potentially block laws that the Supreme Court would be unable to strike down with a bare majority vote.

A supermajority requirement, Doerfler and Moyn argue, “would functionally reallocate decision-making authority to the democratically legitimate branches of government in cases in which a countermajoritarian faction on the Court enjoys only a simple majority.” In effect, the Court’s conservatives would have to convince at least one Democratic appointee to strike down a federal law if Congress imposed a 7-2 supermajority requirement.

This proposal, however, is vulnerable to one of the same problems facing jurisdiction stripping. What happens if a 5-4 Supreme Court strikes down the law imposing a 7-2 supermajority requirement? The result could be a constitutional crisis, as Congress and the Supreme Court would be fundamentally at odds regarding whether particular laws are constitutional, and there would be no clear way to resolve this dispute under the Constitution.

Another problem is that the Supreme Court does not need to declare a federal law unconstitutional in order to sabotage it. If Congress requires a supermajority to strike down the Voting Rights Act, for example, the Court could still interpret the individual provisions of this law so narrowly that they would do very little to protect voting rights.

6) Presidential (or congressional) resistance to the Supreme Court

Abraham Lincoln began his presidency with a broadside against the Supreme Court. Reacting to the Supreme Court’s pro-slavery decision in Dred Scott v. Sandford (1856), Lincoln attacked the very idea that the justices should have the final say on constitutional matters in his first inaugural address.

[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Though Lincoln conceded that Dred Scott was binding upon the particular parties to that litigation, he rejected the idea that the president or Congress is bound by the Court’s understanding of the Constitution. The Lincoln administration issued a passport to a Black man, defying Dred Scott’s holding that Black people cannot be citizens. And Lincoln signed legislation banning slavery in the territories, defying Dred Scott’s conclusion that slaves remained slaves even after entering a free territory.

A similar drama nearly played out in the Franklin Roosevelt administration. During Roosevelt’s first term, many contracts contained “gold clauses” requiring debtors to pay back creditors in gold dollars valued at the time when the contract was made. Because of rampant deflation due to the Great Depression, these contracts effectively increased the amount of debt owed under these contracts by as much as 69 percent.

Among other things, these gold clauses drove up the returns railroads owed on their bonds so high that they could have bankrupted most of the railroad industry, potentially shutting down much of the nation’s shipping in the process. And the clauses threatened to ruin homeowners who suddenly owed the equivalent of $1.69 for every dollar they borrowed to buy their house.

Congress declared these gold clauses null and void. But Roosevelt, fearing that the Supreme Court would reinstate the clauses, prepared a speech announcing that he would not obey such a decision. “To stand idly by and to permit the decision of the Supreme Court to be carried through to its logical, inescapable conclusion,” Roosevelt would have said in a speech the Court never forced him to deliver, “would so imperil the economic and political security of this nation that the legislative and executive officers of the Government must look beyond the narrow letter of contractual obligations.”

The theory that each branch of government may decide on its own how to interpret the Constitution, even in defiance of the Supreme Court, is known as “departmentalism.” Under this theory, a president potentially has significant (although not entirely unlimited) power to undermine the judiciary’s determination that a particular law is unconstitutional.

Suppose, for example, that the Supreme Court strikes down the Affordable Care Act. A Democratic president could order the US Marshalls not to enforce this decision. They could order the Treasury to continue to provide subsidies to states and individuals entitled to receive them under Obamacare. And the president could routinely pardon executive branch officials who continue to make these payments, neutralizing a federal law that plausibly could subject these officials to prosecution in a future administration.

Departmentalism would not allow the president to completely neutralize such a Court decision. Lower federal courts would remain bound by the Supreme Court’s decision, so the president would not be able to obtain a court order against states or private insurers who violate their obligations under Obamacare. But departmentalism would, at the very least, allow the president to mitigate the harm created by a decision that would otherwise strip health coverage from tens of millions of Americans.

7) State resistance to the Supreme Court

Just as the executive or legislative branch might resist a Supreme Court decision through departmentalism, states might invoke a theory known as “interposition” to defy a court order.

The history of interposition, which posits that a state may “interpose” its authority between the Supreme Court and its citizens, is not a happy one. In the wake of the Supreme Court’s desegregation decision in Brown v. Board of Education (1954) Southern segregationists relied on interposition to justify defying Brown. Martin Luther King Jr. called out segregationist Alabama Gov. George Wallace, in King’s “I Have a Dream” speech, for “having his lips dripping with the words of ‘interposition’ and ‘nullification.’”

Yet, there are constitutional systems where something similar to interposition exists without this same tainted history. Canada’s Charter of Rights and Freedoms, for example, contains a provision known as the “Notwithstanding Clause,” which allows either the national parliament or a provincial legislature to declare that at least some laws shall operate “notwithstanding” a court decision declaring that the law violates Canada’s Charter — although these overrides automatically expire after five years if they are not renewed.

In the US system, if a state defies a Supreme Court order, the executive branch may use force to enforce that order — think of President Dwight Eisenhower ordering the Army to enforce a desegregation order in Little Rock, Arkansas.

But, as Alexander Hamilton wrote in the Federalist Papers, the judiciary “has no influence over either the sword or the purse” and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” If the Supreme Court hands down a decision that a state government deems abhorrent, the Court cannot enforce that order if the president decides that it should not be enforced.

Ways to override Supreme Court decisions

As Congress has grown more and more dysfunctional, the Supreme Court has gained a nearly unchecked power to determine the meaning of federal laws. Though Congress lacks the power to overrule a Supreme Court decision interpreting the Constitution, Congress may amend a federal statute if it disagrees with the Court’s reading of that statute.

Yet Congress uses this power far less than it used to, according to a 2012 study by University of California Irvine law professor Rick Hasen. Hasen found that, between 1975 and 1990, Congress enacted “an average of twelve overrides of Supreme Court cases in each two-year Congressional term.” Between 2001 and 2012, by contrast, the number of overrides dwindled to a mere 2.8 per two-year term. (Hasen defines the term “override” to include acts of Congress that “overturned, reversed, or modified a Supreme Court statutory interpretation holding.”)

But there’s no reason why Congress — especially a filibuster-free Congress controlled by a single party — must continue to defer to the Supreme Court.

8) Omnibus legislation overruling past Supreme Court decisions

One model that Congress could follow is the Civil Rights Act of 1991, a bill signed by President George H.W. Bush back when it was still possible to achieve a bipartisan consensus against discrimination.

In its 1988 term, the Supreme Court handed down five decisions that, in the words of one scholar, “substantially eroded Title VII of the Civil Rights Act of 1964,” which prohibits many forms of employment discrimination. Congress enacted the 1991 civil rights bill to overrule, or, in some cases, modify those five decisions.

Similarly, Congress could enact a Civil Rights Act of 2021 that overrides several Supreme Court decisions at once.

This bill could include, for example, provisions tossing out the Supreme Court’s entire forced arbitration jurisprudence, which allows companies to force their workers and customers into a privatized justice system that favors corporate parties. It could overrule decisions weakening the Voting Rights Act. And it could also override less famous decisions such as Vance v. Ball State University (2013), which made it much harder for workers who are sexually harassed by their boss to sue their employer; or Gross v. FBL Financial Services (2009), which weakened protections against age discrimination.

Such an omnibus bill would serve two purposes. It would get rid of Court decisions that weakened laws intended to protect our democracy and halt practices such as discrimination, and it would send a clear message to the justices that there’s a new sheriff in town who is keeping a close eye on them.

9) Expedite legislation seeking to overrule Supreme Court decisions

The Congressional Review Act (CRA) lays out an expedited process that Congress can use to swiftly overrule regulatory decisions by the executive branch. A bill overruling a federal regulation through the CRA still must pass both houses of Congress and be signed by the president, but the CRA’s streamlined process makes it relatively easy for lawmakers who oppose a particular regulation to override it quickly.

In an essay published in the Atlantic, Sitaraman suggests enacting similar legislation allowing Congress to swiftly overrule Supreme Court decisions:

If the Court issued a decision interpreting a statute or regulation, Congress would have 30 days to vote on whether to open a reconsideration process. If Congress voted yes, the speaker of the House, the Senate majority leader, and the minority leaders would appoint a special committee in each chamber (with proportional party membership) to design a legislative fix for the full body to vote on within the next 30 calendar days. The bill would then go to the other house, where it would be voted on within 10 days through a privileged, fast-track process, which would avoid common legislative snags like the filibuster and committee hearings. The president would then sign the law or veto it, as with any ordinary piece of legislation.

Such legislation could create a normalized process whereby Congress routinely reviews the Supreme Court’s decisions and corrects decisions that read federal laws in damaging or implausible ways. It would also act as a complement to an omnibus bill in the vein of the Civil Rights Act of 1991. The omnibus would take care of past decisions that misread federal law, while the review act would prevent new decisions from having much effect.

Democrats will not have much time to decide how to deal with the Supreme Court

Setting aside the more detailed proposals described above, it’s worth noting that Congress has a great deal of power to restrict a Supreme Court that seems determined to undermine democracy.

In its 2020 budget request, for example, the Supreme Court requested $106.8 million in funding from Congress. Congress could if it wanted drastically reduce these funds (with the proviso that the Constitution does not permit Congress to reduce a sitting justice’s salary and benefits).

Similarly, Congress could also impose onerous new duties on the justices. For most of the nation’s history until 1911, Supreme Court justices had to spend at least some of their time “riding circuit” — traveling to various parts of the country to hear ordinary federal cases. Congress could revive this practice. Or it could expand the Court’s (currently very limited) mandatory jurisdiction, forcing it to hear thousands of routine cases involving uncontroversial legal issues.

The point isn’t that Congress should strip the Court of its staff, order the justices to spend half their year flying around to random federal courthouses, or drown them in an ocean of routine appeals. Rather, Congress has tremendous power to fight back against an anti-democratic Supreme Court.

Realistically, however, if Congress wants to prevent the Supreme Court from entrenching its power to veto federal laws and manipulate voting rights, it’s likely to only have a short window in which to do so. Right now, polls show Democrats are favored to win the White House and both houses of Congress, but even if that prediction bears out, Democrats won’t control the elected branches forever.

The biggest risk from a 6-3 Republican Supreme Court is that the conservative justices will bide their time, maybe handing down a few decisions shifting the law marginally rightward, but avoiding anything like a new major attack on the Voting Rights Act until after Republicans gain control of at least one house of Congress.

And once Republicans control at least one veto point, they can halt any effort to rein in Supreme Court decisions that place a thumb on the scales of democracy.

If Democrats do regain control of Congress and the White House, in other words, they may need to make a difficult decision quickly. Even if they dominate the 2020 election, Democrats may have only a two-year window before Republicans regain the House or the Senate.

And once that happens, American democracy will be at the mercy of a 6-3 conservative Court.

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