Six Ways to Combat an Imperial Court

Court Expansion

This is the big-ticket item. The Judiciary Act of 2021 was introduced in both chambers of Congress, eventually picking up 59 cosponsors in the House, including the members of the Congressional Progressive Caucus.

The Act would add four seats to the Supreme Court, giving Democrats a 7-6 majority. The party last held a majority on the court in 1970.

Since the number of justices is not specified in the Constitution, but is set by Congress, no constitutional amendment would be needed to expand the court. The act will be reintroduced if Democrats retake the House in 2024. Passing it will require overcoming the filibuster in the Senate.

In addition to the Congressional Progressive Caucus, the act is endorsed by a broad array of public-interest organizations, including: Public Citizen, Alliance for Justice, Working Families Party, Freedom From Religion Foundation, Free Speech for People, the Center for Popular Democracy, Demand Progress, 350.org, Demos, National Asian Pacific American Women’s Forum, Stand Up America, People’s Parity Project, Indivisible, 51 for 51, Lambda Legal, SEIU, League of Conservation Voters, Sunrise Movement, the Transgender Law Center, GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights, Equal Justice Society, End Citizens United, Let America Vote Action Fund and Demand Justice.

Opponents of the bill argue that if court-expansion legislation ever passed, Republicans would retaliate by enlarging the court again when and if they retake Congress and the White House. But don’t be deterred. The GOP has been manipulating the size of the court for years, blocking Merrick Garland’s appointment and rushing through Amy Coney Barrett’s elevation with less than a month before the 2020 presidential election.

The time to strike back is long overdue. 

Term Limits

Various bills have been introduced to place term limits on the tenure of justices.

One of the more stringent measures — the Supreme Court Term Limits and Regular Appointments Act — has been proposed in both chambers. It would establish 18-year terms for Supreme Court Justices. The bill would require the president to appoint a new justice every two years. If the new appointments would result in more than nine justices on the court at any one time, then the nine most junior justices would make up the panel. Any justice who had served 18 years or more on the court would be permitted to continue their service on the lower federal courts.

But there’s a big catch: the bill may conflict with the life-tenure provisions set forth in the Constitution. And even if that obstacle could be overcome, the Senate filibuster would stand in the way.

Ethics Reform

The Supreme Court is the only court in the U.S. that is not bound by a code of ethics. The Supreme Court Ethics, Recusal, & Transparency Act would change that. In addition to creating a binding code of ethics, the legislation would impose strict gift, travel and income disclosures; require disclosures of dark-money donations made on behalf of judicial nominees; and establish tight recusal standards that would force justices to stand down from cases to avoid conflicts of interest.

Here’s looking at you, Clarence Thomas, for failing to recuse in cases involving the Jan. 6 insurrection and Trump’s efforts to overturn the results of the 2020 election, despite your wife Ginni’s prominent role as an organizer of the “stop the steal” campaign.

Jurisdiction-Stripping

The Supreme Court hears cases involving what is called its “original jurisdiction” and its “appellate jurisdiction.” Most of the cases the Supreme Court hears fall within the latter category, consisting of petitions seeking review of decisions handed down by the lower federal courts and state courts. Only a small part of the court’s docket falls within its original jurisdiction, referring to cases that begin with filings in the Supreme Court. Examples of original-jurisdiction matters are disputes between states, and those involving ambassadors.

Under Article III, Section 2 of the Constitution, however, Congress has the power to make exceptions to the panel’s appellate jurisdiction. Congress theoretically also has the constitutional authority to impose regulations on the way the court exercises its appellate jurisdiction. As proponents of “jurisdiction-stripping argue, Congress could withdraw the high tribunal’s power to review certain categories of litigation, for example, in cases involving voting rights. Congress could also pass a law requiring super-majorities of 6-3 or 7-2 for decisions that weaken voting rights.

A few Supreme Court decisions recognize the jurisdiction-setting power of Congress, but the cases are old and of questionable weight. And the Supreme Court might respond to any new jurisdiction-stripping legislation simply by declaring it unconstitutional.

Congressional Overrides of Statutory Rulings

Congress can override Supreme Court decisions based on interpretations of federal statutes rather than the Constitution. In 2007, Samuel Alito wrote a majority opinion dismissing a gender-based pay discrimination lawsuit brought by activist Lilly Ledbetter on statute of limitations grounds. In 2009, Congress effectively negated Alito’s ruling by passing the Lilly Ledbetter Fair Pay Act.

If sufficiently pushed to the left, Congress could do the same with voting rights, passing new laws to protect access to the polls and counter the Supreme Court’s gutting of the Voting Rights Act. That’s just one example of what a truly progressive Congress could do.

New Federalism

We usually think of federalism as a reactionary form of states’ rights. In recent years, however, we’ve seen the rise of a liberal form of federalism in response to right-wing Supreme Court decisions that have undermined constitutional rights.

Nowhere is this development more pronounced, or more promising, than on the issue of abortion rights. In the wake of the Dobbs decision that overturned Roe v. Wade and revoked the federal constitutional right to abortion, several states have moved to expand abortion access through a variety of means, including constitutional amendments, gubernatorial executive orders and loosening restrictions on who can perform abortions.

Expect further expansion of blue-state protections on abortion and in other areas of law as long the Supreme Court remains in the hands of the extreme right.