When the Supreme Court makes a power-grab, the answer is for the democratic branches of government to push back. But the strategy seized upon by many of those dismayed by the current court is misguided.
Don’t pack the court. Instead, change the rules.
Members of Congress know that if you have a choice between the rules and the substance, you will always win if you choose the rules. So court reformers need a new approach, a democratic agenda for the courts to restore the rule of law.
No one is calling balls and strikes on the Roberts Court. The conservative justices have moved the strike zone and announced that they are more important than anyone else on the field. They have changed the rule of law by fiat. Call a new approach to this crisis “democratic rule of law reform.”
Congress has the power to prevent the Supreme Court from picking and choosing the most politically charged cases. Change the statute that created the process by which the court picks the cases it wants to decide.
The Constitution only requires that the Supreme Court has jurisdiction in a limited set of cases of “original” jurisdiction. Congress has regulatory power over all other appeals.
This is the Constitution’s text: “The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
Congress has the power to require lower court judges to recuse themselves from cases involving the president that nominated them; just amend the current recusal statute, 28 U.S.C. 455, which has existed since 1948, to add this ground for recusal. Add in Supreme Court judges and ask them to put themselves on the record against such recusals.
Congress also has the power to bar the nationwide injunction and to end judge-shopping. It can amend the laws to provide that no single district or appellate judge can issue a nationwide injunction and pass the “End Judge Shopping Act” to prevent individual judges from roiling national controversies on topics such as abortion or guns.
Congress has the power to reverse the Supreme Court’s major questions doctrine, a court-made doctrine used to counter majoritarian policies (think student loans and abortion medication). It can define a “major question,” as it has previously in the Congressional Review Act, and copy the procedures in that act to allow Congress to review anything the court deems a “major question” on fast-track procedures and reject it on a majority vote.
Congress has the power to reverse the Loper Bright decision’s refusal to defer to agency expertise in implementing the law. Chevron was a judicial doctrine. It was reversed this term on the theory that it contravened the Administrative Procedure Act. But Congress can amend that act to say that courts “must defer to the expertise” of an agency’s fact determinations and the agency’s application of law to fact” and further shall “presume that an agency’s statutory interpretation is entitled to presumptive validity” if reasonable judges could or have disagreed about its meaning, and the statute is silent or ambiguous on the application.
Congress has the power to stop all courts, including the Supreme Court, from blinding themselves to Congress’s documents in filling gaps in statutes and making up their own rules to rewrite statutes.
Current courts treat Congress’s documents (known as legislative history) as dubious public documents because they are not statutory “text.” This means that judges, not representatives, end up using their own judge-made rules, or biases, to fill statutory gaps.
Congress must simply add a sentence to every existing law, and future bill, stating that the “official public documents such as committee reports and hearings and the legislative debates on this measure” are hereby incorporated into the text.
Congress has the power to bar the federal courts from creating new rules of interpretation (sometimes called canons, like the major questions canon) that do not reflect majoritarian values. Every state has these codes; only in the federal system do federal judges regularly create new canons that have no legislative, democratic imprimatur. If a court wants to create a new canon or apply an old canon, it must find that the canon is deployed in states constituting a majority or more of the population.
Congress has the power to dictate that the rules of evidence do not allow a court to rely upon ancient British or any foreign common law, to interpret either the American Constitution or current American statute law. The Supreme Court does this regularly in the name of a bogus originalism (e.g. Dobbs, Rahimi, Torres).
This does not violate the court’s power to “say what the law is,” it simply eliminates a form of evidence. Congress has in the past created new rules of evidence, and rejected evidence proposals by the courts.
Congress can require yearly “audits” by former judges of the consequences of Supreme Court decisions. The current court repeatedly says it does not care about the consequences of its decisions as if this were judicially virtuous. Yet we have considerable “disruption” in the courts.
Former judges can be asked to supervise nonpartisan assessments of the judicial consequences of the Supreme Court’s decisions on the courts, the federal government and the states, and report to Congress.
If nothing else, Congress has plenary constitutional power over the lower courts to set these rules. The American public is now awake to the danger. More extreme reforms are not feasible. Franklin D. Roosevelt could not pack the court, even with 67 votes in the Senate. And term limits will do nothing now.
It is time for members in the Senate and the House to play for rules. Republicans have done this repeatedly and won: habeas corpus reform (which was really death penalty reform); tort reform; repealing Miranda rights.
If nothing else, if you really care about curbing out-of-control lawyers, this court is the fullest corporate law firm giveaway in our lifetime — not to mention setting up a dictator from day one.
Victoria Nourse is the Ralph V. Whitworth Professor of Law, former chief counsel to Vice President Joe Biden and the founder of the Georgetown Center on Congress and Democracy.