To mark the passing of Justice Ruth Bader Ginsburg, and in recognition of the fresh hell that RBG’s death is very likely to unleash, we should pause to do two necessary things. First, to give to a trailblazing woman the honors and proper period of national mourning that she deserves. And second, to carefully consider just how completely the Supreme Court has wrecked our constitutional democracy.
Think for a moment about just how much depends now on who holds a single seat on the Supreme Court: the future of the Affordable Care Act (ACA) or “Obamacare” (the Court will hear yet another constitutional challenge to the ACA the week after the election), the survival of legal abortion, and, more immediately, who will occupy the White House this January, which may well end up being decided in a protracted legal battle over the validity of absentee and mail-in ballots.
None of this is normal, or good. The framers never intended for the Supreme Court to play such a central role in our democracy. And, of much more practical importance—since I’m not an originalist and you shouldn’t be either—having the fate of the country determined one way or the other by the untimely death of an 87-year-old woman is just no way to run a constitutional democracy.
We’ll know more soon, but absent the defection of four GOP senators, Donald Trump has a clear path to add yet another right-wing justice to the Court. There has been brave talk on left-Twitter about the prospect that a Democratic sweep in November will allow Democrats to pack the Supreme Court by adding as many as four new justices in response to Trump’s successfully replacing Ginsburg with a new justice in the last days of his administration. But all of those plans depend on former Vice President Joe Biden winning the election and the Democrats gaining a majority in the Senate—and neither is anything approaching a sure bet.
Setting aside those uncertainties for a moment, it’s far from clear that Democrats would find 50 votes, even in a Democrat-majority Senate, to pack the Supreme Court. (It’s not even clear that a President Biden would sign a court-packing bill, an idea that he expressly opposed in the recent past.) Although the historical memory of most of today’s Democratic officeholders may not reach back so far, it is instructive that Franklin Roosevelt’s attempt in the early 1930s to pack the Court failed. That may be because it seems odd to try to fix politicized courts by even more explicitly politicizing them, as court packing does.
Another problem with court packing is that we’re not playing one-move chess here: there will be a tit-for-tat response. When the GOP regains power, it could pass a law demoting a group of justices to the lower courts—a move which would very likely be constitutional. And then it could “re-pack” the Court with a new set of right-wing justices. If this is the game we end up playing, then we’ve only deepened our political dysfunction. (Indeed, that was Biden’s argument against the idea.)
There is another, better, way to rein in partisan judges: by stripping the Supreme Court, and also the lower federal courts, of jurisdiction where Congress does not want partisan judges second-guessing particular decisions—especially where, as is so often true, the Constitution does not speak directly to an issue and courts are making political choices rather than legal judgments. That strategy, while perhaps a bit more difficult to reduce to a sound bite or a campaign slogan, gets directly at the problem of partisan judicial activism. It is also a more focused and less overtly politicized approach compared with court packing.
Perhaps the most powerful argument for jurisdiction stripping is that the Constitution clearly permits it. Article III, section 1 of the Constitution gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, section 2, clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose for approximately 99 percent of the Supreme Court’s total docket what cases the Court has the power to hear. As I explain in a law review article, to be published in December in the New York University Law Review, under its Article III authority, Congress can remove the Supreme Court’s appellate jurisdiction over particular cases, or particular issues, largely without constraint.
Congress also has the power to limit the jurisdiction of state courts to hear federal questions, including constitutional claims. But on a practical level, it would not matter much even if state courts still hear federal constitutional claims. State courts lack both the authority to enjoin federal officials and the practical institutional power to counter a determined federal government.
The implications of Congress’s Article III power are potentially profound. Congress’s power over courts’ jurisdiction means that it can claim for itself authority to interpret the Constitution in particular cases. In the short term, it is a strategy that Democrats can use to rein in the partisan federal courts that the four-decade-long GOP obsession with appointing right-wing partisans to the federal bench has created. But the ultimate promise of jurisdiction stripping isn’t as a short-term stratagem to restore the courts’ partisan balance. It is a deeper remedy that can help put an end to the unhealthy situation in which Americans look to federal courts to resolve every important political question.
What does that mean in practice? A couple of examples might help.
Imagine that Democrats respond to America’s unconscionable level of inequality by enacting a wealth tax. That might be very popular; millions of Americans have been thrown out of work in this pandemic while America’s billionaires got over $400 billion dollars richer. But the Supreme Court would likely strike down the tax, holding that it fails to satisfy the Constitution’s requirement in Article I, section 9, clause 4 that so-called “direct” taxes must be apportioned among the states by population (a standard no wealth tax is ever likely to meet, as there are so many more rich people per capita in New York than in New Mexico).
Or imagine that Democrats start the work of heading off a climate catastrophe by passing legislation that sets limits on CO2 emissions while providing the Environmental Protection Agency with expansive new powers to write rules aimed at achieving the limits at an acceptable cost. The Supreme Court might dismantle this law too, holding that the Constitution prohibits Congress from delegating its legislative power to administrative agencies.
In both of these cases, Congress can use jurisdiction stripping to circumvent hostile courts. Congress could enact wealth tax legislation that includes a provision stripping the federal courts of jurisdiction to review the tax. In so doing, Congress would be advancing its own understanding of the meaning of the Constitution’s apportionment requirement—the exact scope of which is, in fact, subject to reasonable debate—and telling courts to stay out. If voters dislike what Congress has done (that is, if they disagree either with the tax itself or with Congress’s decision to limit judicial review), they can give their votes in the next election to candidates who oppose the tax, the jurisdiction-stripping provision, or both.
Congress could take a similar route with respect to climate change legislation—include a provision stripping courts’ jurisdiction to review the legislation. In effect, Congress would be using its Article III power to state that it won’t tolerate politicized courts making up a non-delegation doctrine out of whole cloth.
As with any substantial change in the direction of our constitutional democracy, there are reasons for caution. First is that Congress’s Article III power will be used—and misused—by Democrats and Republicans alike. So, for example, a Republican Congress might attempt use the tool to limit federal court review of state laws restricting abortion. But even that concern is not a particularly powerful argument against jurisdiction stripping. Indeed, the fact that jurisdiction stripping, unlike court packing, is not inherently political is part of my attraction to it. I’m a liberal Democrat, but my first attachment is to democracy, and not to any particular political position or outcome. (And that’s been my position long before Trump came to power.)
I take a skeptical position toward judicial review partly because democracy has moral content—people are entitled, within limits, to govern themselves. But my preference for democratic decision-making is also grounded in history and practical reality. It’s far from clear that courts in the United States have, on balance, played much of a role in protecting our rights (including our right to equal treatment under law) when the democratic process has failed to do so. Consider the Supreme Court’s odious decision in Korematsu v. United States, upholding the WWII-era detention of U.S. citizens of Japanese ancestry. Or, more recently, the Court’s equally repulsive 5-4 decision in Trump v. Hawaii, upholding a presidential proclamation restricting travel into the United States by people from a group of mostly Muslim-majority countries. In these cases, and many others, the Supreme Court has just as often reinforced our worst democratic missteps as it has intervened to stop them. And sometimes, the Supreme Court has stood on the side with our national demons even when our better angels prevailed in the democratic debate. One particularly consequential example is the Court’s 1857 decision in Dred Scott v. Sanford, where the Supreme Court invalidated Congress’s attempt to prevent slavery from being extended into newly added U.S. territories. That appalling decision helped pitch the United States into a civil war in which more than 600,000 Americans lost their lives.
The bottom line is Americans tend to overrate the role of courts in protecting us from the possibility of bad things happening. The best long-term guarantee of a decent, rights-respecting society is for Americans to take their obligations of citizenship seriously, and for all of us, Democrats and Republicans, to leaven our politics with decency. Our habit of turning our deepest political disagreements into legal disputes drains the energy out of our democracy. So does our over-reliance on the wisdom of nine lawyers in priestly robes chambered in a fake Greek temple on a hill in Washington, D.C.
There is also the persistent worry that in using its Article III power to reduce the role of courts, Congress may be taking us down a road to “legislative tyranny.” But a quick look to our north suggests that matters aren’t that simple. Canada has long had a provision in its Charter, the so-called “Notwithstanding Clause,” that allows the national and even provincial legislatures to override court decisions on a wide range of topics. Canada has somehow avoided legislative tyranny, and there’s very good reason to think that jurisdiction stripping in the United States isn’t a slippery slope either.
In the more than two centuries since Chief Justice John Marshall claimed for the Supreme Court in Marbury v. Madison the power to declare invalid laws duly enacted by the people’s elected representatives, Americans have grown to expect that the courts will review Congress’s work; indeed, Americans are deeply committed to judicial review as a talisman of lawfulness. For that reason, Congress can hope to succeed in asserting its Article III power only when a particular use of the power is backed with a broader argument that judicial review is likely to be politicized and that Congress should wield its override power as a democratic corrective.
These are demanding conditions, and yet with Justice Ginsburg’s passing and the prospect of yet another GOP Supreme Court appointment—the third in Trump’s term—that is clearly aimed at delivering the Court and the Constitution to the Republican base, we may be entering a moment when the necessary pieces are falling into place.
Finally, judicial resistance to Congress’s exercise of its Article III power is possible, and perhaps even likely, at least initially. What happens if the Supreme Court declares an act of jurisdiction stripping unconstitutional? Everything will depend upon how determined Congress is to have its way.
I am reminded of a quip, attributed by Winston Churchill to Josef Stalin. When asked in 1935 by French Foreign Minister Pierre Laval whether Stalin could provide more lenient treatment to Russian Catholics to help convince the Pope to counter the rise of Nazism, Stalin supposedly replied “The Pope! How many divisions has he got?” In a conflict over Congress’s power to limit the courts’ jurisdiction, one might similarly ask how many divisions the courts have. The federal courts are, in fact, utterly dependent on the political branches. The courts are dependent on Congress in the very practical sense that they control neither their own budgets nor even their own facilities. Similarly, the courts are dependent on the executive for execution of their orders. Alexander Hamilton acknowledged the dependence of the courts quite plainly in Federalist 78:
The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
A Congress determined to wield its power to control judicial jurisdiction is well-positioned to beat back any opposition by courts. The real question, then, is not whether courts will accept Congress’s use of its Article III power to change existing constitutional arrangements, but whether voters will. That all depends on how deftly Congress uses the tremendous power that Article III of the Constitution gives it. Congress’s use of the power would make sense only when political support for changing a particular constitutional arrangement is very strong (think: perhaps the overturning of Citizens United v. Federal Election Commission) and likely to be durable. Given how deeply entrenched the institution of judicial review is in our culture, convincing the public that a particular use of the Article III option is both permissible and necessary is going to take a good deal of skill and courage.
Image: A view of the Supreme Court at dusk, January 31, 2017 in Washington, DC. Photo by Drew Angerer/Getty Images