How Congress can rein in a rogue high court

If the Supreme Court’s decisions in 2022 made your skin crawl, what with its eviscerating abortion rights, hobbling gun restrictions and undermining the government’s ability to address global warming, strap yourself in: The 2022-23 session could be as bad, or worse.

So it should come as no surprise that interest in options to clip this Supreme Court’s wings has continued to grow.

On the court’s docket are cases that could limit the federal government’s enforcement of clean water regulations, narrow the Voting Rights Act, outlaw affirmative action policies at universities and protect LGBTQ people from discrimination.

The most consequential, and to some observers dangerous, case involves something known as the independent state legislature doctrine.

The argument is that legislatures should be free to regulate congressional elections without regard to their own state constitutions, governors or courts.

That position could open the door to widespread gerrymandering and even affect the conduct of presidential elections at the state level, posing a new threat to the democratic process.

The court’s rulings on so many closely watched issues in the most recent session have appeared to bring its popularity and public esteem to a historically low ebb, according to opinion polls.

“The comforting notion of the court as umpire lies in tatters,” observed law professors Joseph Fishkin of UCLA and William E. Forbath of the University of Texas in a recent op-ed. “It is Justice Samuel Alito’s court now: methodologically flexible but ideologically rigid.”

Alito was the justice who wrote the notorious decision in Dobbs vs. Jackson Women’s Health Organization, which overturned abortion rights established in 1973 by Roe vs. Wade.

Americans may be unnerved less by the actual outcomes of these cases than by their apparently slipshod and openly partisan reasoning.

In decades past, Fishkin notes, Anthony M. Kennedy (who sat from 1988 to 2018) and Sandra Day O’Connor (1981-2006) occupied a moderate center. “People had the feeling that a good argument might persuade the court,” he says. “That’s going away. It’s clear that you can predict how Alito will rule by figuring out what the Republican policy is.”

We’ve examined the prevailing ideas for moving the court back to the center, or at least bringing its rulings closer to public sentiment, before. These include expanding its size to provide seats for presumably more liberal jurists or imposing term limits to keep a single bloc from dominating its deliberations for decades, long after the political environment in which they were appointed has withered away.

These ideas have their shortcomings. While the Constitution gives Congress the right to set the court’s size, expansion by one party could lead to a series of tit-for-tat expansions from now to the end of recorded time.

Term limits or similar plans such as age limits could run into constitutional problems. The Constitution says that federal judges “shall hold their Offices during good Behaviour,” which may rule out any other tenure standards.

But as Fishkin and Forbath noted, there are other options that could be more effective and more focused in reining in the court’s partisan instincts. These fall into the general category of “jurisdiction-stripping,” Fishkin told me: Congress forbidding or limiting federal courts’ authority to review its laws.

There’s little doubt that Congress has that right. Most recently, it was exercised in the Inflation Reduction Act, the spending plan signed by President Biden on Aug. 16. The measure bars judicial review of provisions related to drug prices, including how the rule allowing Medicare to negotiate drug prices will be implemented.

A more instructive example, Fishkin told me, involves the Norris-LaGuardia Act of 1932, which protected the right of workers to unionize and engage in collective bargaining. Among its key provisions was a strict limitation on the authority of federal courts to issue injunctions against unionizing, picketing, striking or assembling peaceably.

“People often think about ‘jurisdiction’ as whether the courts can hear a certain case at all,” Fishkin says. “But sometimes it’s saying that the courts can’t use certain tools.”

Congress could also anticipate the Supreme Court’s objections to a new law by incorporating alternatives to provisions it might overturn that would be perhaps more unpalatable, but unchallengeable.

For example, Congress might have protected the Affordable Care Act’s provisions requiring all states to expand eligibility for low-income residents in Medicaid, which states and the federal government jointly fund, by stating that if the court overturned expansion, then Medicaid would be converted into an all-federal program.

To date, 12 red states still have rejected expansion on ideological grounds, despite incontrovertible evidence that expansion produces cost savings for the states that accept it and leads to healthier residents.

What’s best about these options is that they return judgments about the underlying issues to the field of politics, where they belong, rather than judicial action.

Whether the voters will support strong action to limit the Supreme Court’s authority depends, of course, on the court’s level of public esteem.

In recent months, several justices — notably Chief Justice John G. Roberts Jr. and justices Alito, Amy Coney Barrett and Clarence Thomas — have tried to counteract the idea that the court is losing its legitimacy. (Never mind that the doctrinaire conservatism of Barrett, Alito and Thomas is what may be undermining that legitimacy.)

Other than Roberts, who has tried to map out a more centrist conservative course, none of them has shown a willingness to moderate their positions on the major issues being followed by the public.

But dismay about the Supreme Court’s rulings may not exactly correspond to popular eagerness for reforming the institution. There’s a very deep legacy of respect for the court as an institution that may not have been sufficiently shaken, yet.

Many Americans still think of the court as a beacon of progressivism, derived from the Warren Court of the 1950s and ’60s and such decisions as the anti-segregation Brown vs. Board of Education of Topeka (1954), as well as a skein of decisions protecting free speech, the rights of criminal defendants and the separation of church and state. But the Warren years may have been a liberal exception to a long conservative tradition.

“We’re at an early stage” in the evolution of public opinion about the Supreme Court, Fishkin says. “There’s a public conversation that needs to continue for a few years about this thing. Though the court will probably give plenty more reasons for that conversation to continue and escalate.”