The Supreme Court ended its term Thursday having produced a string of decisions that with casual brutality threatened Americans’ privacy, health and well-being. Democrats, in the face of this assault on the rights and privileges of their constituents, haven’t responded with the necessary anger or urgency.
The framers intended Congress to be the most powerful of the three branches of government, consisting of representatives of the people and the states. The executive was to be feared and constrained; the judiciary was, in comparison, an afterthought mostly left to future Congresses to craft. In drafting the Federalist Papers, Alexander Hamilton considered the courts the “least dangerous to the political rights of the Constitution.”
What we’ve seen this term is a court determined to prove Hamilton wrong. While Congress has the ability to curtail the authority that the unbalanced, undemocratic courts have accumulated, there seems to be almost no drive among Democrats to even challenge the third branch.
Dahlia Lithwick: Supreme Court is ‘squandering’ its credibilityJune 30, 202208:12
Let me clarify that I do not propose invalidating the principle of judicial review, whereby the courts have the authority to block and overturn legislative and executive actions. The Supreme Court’s function as arbiter of the Constitution is an important and needed one, given the possible abuses from the other branches.
It’s a power that is more easily used to strike down than to build. As Vox’s Ian Milhiser has noted, while the court can’t establish an agency to protect the rights of citizens, it can absolutely erase one out of existence.
But too often the role of Congress in limiting the power of the courts is reduced to the Senate’s “advise and consent” function in confirming judges and justices. That should be more properly seen as a check on the executive’s power to name members to the court rather than a check on the judiciary. As for checking the judiciary itself, the Constitution grants Congress wide leeway to address how the federal courts function and to respond to Supreme Court rulings.
In Thursday’s West Virginia v. Environmental Protection Agency, a 6-3 majority found that the EPA had overstepped the bounds of the Clean Air Act in administering clean energy regulations. The fix should be one of the simplest available: Congress is well within its rights to pass a new law explicitly saying, “Yes, the EPA does have this authority.” In Thursday’s case, however, the Supreme Court used the so-called major questions doctrine, which it has used seemingly at random to strike down regulations. It’s a practice that Congress should be able to curtail, but there has been no movement from lawmakers to force the court to clarify the doctrine or to craft language to assert its ability to delegate authority to agencies in future bills.
The Constitution grants Congress wide leeway to address how the federal courts function and to respond to Supreme Court rulings.
Even on more fundamental constitutional questions, the courts often give Congress an out. In the infamous 2013 Shelby County v. Holder decision, which struck down the Voting Rights Act’s main enforcement tool, Chief Justice John Roberts made it clear that Congress could pass a new formula for determining which states need Justice Department approval to change their election laws. Similarly, while last week’s decision in Dobbs v. Jackson Women's Health Organization negated a constitutional right to abortion access, the ruling doesn’t prevent Congress from passing a federal law guaranteeing such access.
Moreover, there are still two checks against the judiciary that Congress alone has available, neither of which has been threatened, let alone wielded. The first, impeachment, has been used even more rarely against Supreme Court justices than it has against presidents. There is no concerted call for even an impeachment inquiry in the House, even though three of the nine justices owe their seats to a president who routinely sought to violate the Constitution and even though the wife of another was working in tandem with that same president’s campaign to overturn the 2020 election. The other, amending the Constitution, hasn’t occurred since the 27th Amendment, which stops a sitting Congress from giving itself a raise, was ratified in the early 1990s. The last major liberal attempt to amend the Constitution — the Equal Rights Amendment — petered out during the state ratification process.
The alternative to removing justices via impeachment would be to add seats to the Supreme Court, but proposals to expand the court have gone nowhere in either house of Congress. Smaller-scale methods for reining in the courts have also gone nowhere. There has been no congressional mandate for the Supreme Court to adhere to a code of ethics. And only rarely does Congress explicitly limit the courts’ jurisdiction to review certain statutes.
An argument for fixed terms and expanding the courtJune 28, 202206:14
Rep. Ro Khanna, D-Calif., on Wednesday announced new legislation to limit Supreme Court justices to 18-year appointments and challenged Democratic leadership to endorse the plan. But even Khanna’s proposal still runs into the same problem that most, if not all, of the other examples share: Republicans are quite happy with the status quo. If Democrats are guilty of gross neglect in checking the Supreme Court, the GOP has engaged in willful neglect.
Conservatives have invested decades in shaping the Supreme Court and the federal judiciary writ large, allowing them to use the courts to do what they can’t through legislation: dismantle the liberal state piece by piece. This Republican attack has been carried out with methodical efficiency. One of their most impressive feats has been convincing the American public that any attempt by Democrats to reform the court, no matter how small-d democratic in nature, is an entirely partisan effort to sully infallible justices’ decisions with politics.
The only reason this gambit can work is a more general forgoing of the legislative power. This in turn has been in large part blamed on polarization, especially in the Senate. But the Senate’s filibuster is a rarity that neither of the other branches has or even wants: a self-check. The Senate has over the course of multiple votes during this Congress alone determined that paralysis is preferable to majority rule.
If Democrats are guilty of gross neglect in checking the Supreme Court, the GOP has engaged in willful neglect.
This unnecessary, self-imposed restraint has allowed power to flow steadily away from the legislature to the executive and the judiciary. The same inertia that has allowed the White House to unilaterally launch a war and forced it to govern through executive order has turned the judiciary into an institution of unquestioned authority. Small wonder, then, that the public’s trust in the Supreme Court has plummeted to an all-time low.
It is not an exaggeration to say that Congress’ neglect has left the Supreme Court unaccountable. Instead of Hamilton, we must look to Brutus’ warning in the Anti-Federalist Papers for an accurate prediction of what has come to pass: “In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”
Years of inaction stripped the power from the people and left it in the hands of a concentrated few who would rather watch the world burn than willingly yield to change. The assumption among liberals that America’s institutions are immutable and beyond changing, even in times of crisis, has left the country at a tipping point. It’s not too late for Democrats to snap out of it and restore Congress to its position of primacy. It will involve hard choices and hard votes that will fundamentally alter the country. But the current imbalance of power is not sustainable, in any sense of the word.