How to Fix the Court.
The Supreme Court has arrogated itself over the other branches of government — and trampled the rights of Americans. It’s time to fix that.
“Judicial supremacy” is the construct that the Supreme Court is the final arbiter of the constitution — that its authority in interpreting the Constitution supersedes the other branches of government.
Like so many aspects of modern government, we ascribe judicial supremacy a certain ahistorical concreteness, as if because it came before us, it must be essential to the way the framers intended our government to function.
But the framers, so fearful of a tyrannical government, held above all that there should be a balance of powers across the branches. If the past few weeks have taught us anything, it's that our system suffers from a profound imbalance. Indeed, in ignoring the Court’s own internal check of stare decisis, in writing sweeping decisions intended to foreshadow yet more decisions that would destroy American liberty as we know it, it’s time to exercise those checks.
That power sits fundamentally with Congress, which has the authority to expand the Court, to limit the Court’s jurisdiction, alter the Court’s composition, or to limit its funding. Here, let’s engage with some of the opportunities and challenges posed by each.
Expanding the Supreme Court.
Expanding the Supreme Court would imply increasing the number of justices from the current nine. Importantly, Article III of the Constitution, which establishes the Court itself, says nothing about its composition. And the Court has had various numbers of justices in the past. The first Supreme Court had only six justices.
Indeed, the Court’s composition has been understood to be alterable. In 1866, a Republican-controlled Congress passed the Judicial Circuits Act to limit the Court to six justices specifically to sidestep the appointment of Henry Stanbery to the Court by President Andrew Johnson — President Lincoln’s vice president and successor. Both Johnson and Stanbery supported readmitting former Confederate states to the Union without reservations that they guarantee the rights of newly freed Black people.
In 1869, with that threat averted, Congress passed the Judiciary Act, which returned the number of justices to nine. It also stipulated that each of the country’s nine circuit courts should have a circuit court judge who would live there and have similar power and jurisdiction to a Supreme Court justice assigned to that circuit. But today, there are 31 circuit courts. Needless to say, the Supreme Court has not grown with the expansion of judicial circuits.
Given that Congress can and has altered the size of the Court as it chooses, this is a plausible approach to addressing the growing power of the current Court.
There are, of course, several challenges to this. Any act of Congress will require 60 votes in the Senate in order to overcome a filibuster, which Democrats do not, and likely will not have considering the apportionment of the Senate. That is, of course, unless Democrats get enough votes to drop the filibuster altogether.
But that sets up another challenge: not that adding justices to the Court would be too hard, but that it would become too easy. And every time a party had a trifecta of government control, it would add a new round of justices, leading to an ever increasing number of justices on the bench.
Limiting the Court’s Jurisdiction.
Article III of the Constitution reads:
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.
This allows Congress to limit specifically the kinds of cases that can be appealed to the Supreme Court. Along with the ability to define the jurisdictions of lower courts, this “jurisdiction stripping” can be used to curtail the power of the Court overall, and also to force certain aspects of the law back to the political branches of government.
A recent attempt at this came via the Military Commissions Act of 2006, which tried to strip Guantanamo Bay detainees of the ability to appeal cases in federal courts. One could imagine far more productive uses of jurisdiction stripping, such as to protect federal courts from appellate oversight over issues such as access to contraception, the definition of marriage, or the right to an abortion should any of these be codified by Congress.
Revoking life tenure.
Article III contends that Supreme Court justices “shall hold their offices during good behavior.” Since it does not specify a specific term, it’s assumed that this implies life tenure conditional on “good behavior.”
The idea, of course, is that freeing the justices from political concerns should ensure their objectivity. Yet the problem is that it’s driven the appointment of younger and younger justices to secure ideological skews on the Court. As political commentator Dan Pfeiffer commented, presidents will soon resort to nominating the winner of the Harvard Law School 5K. The practice has led to appointing ill-prepared, sloppy judges to all levels of the federal judiciary — such as the judge who struck down the transportation mask mandate. Worse, time on the bench tends to skew judges toward more ideological extremes.
Today, most countries in the world have limited judicial tenure, either through mandatory retirement ages or fixed terms. Across the U.S., only one state supreme court allows for life tenure.
One bipartisan plan from the American Academy of Arts and Sciences calls for an 18-year term with regular appointments made every two years to replace outgoing justices. The plan would not only limit life tenure, but it would also guarantee every president a stable number of two appointments, assuring a reliable translation of voters’ political will into the federal judiciary.
Yet curtailing life tenure would likely require a constitutional amendment — which itself would require two-thirds of both houses of Congress and ratification by three-fourths of the states. And considering the current composition of the Court, it’s unlikely that Republicans in Congress would support this — let alone gerrymandered state legislatures across the country.
Article III conditions the service of Supreme Court justices on “good behavior.” Only one justice, Samuel Chase, has ever been impeached. And he was acquitted.
Some have argued that effectively lying under oath in the course of their confirmation hearings, as Justices Gorsuch, Kavanaugh, and Barrett did about their positions on stare decisis and Roe v. Wade, constitutes “bad behavior.” I would agree. Yet each of these lawyers was careful to suggest that they would uphold Roe, while not directly perjuring themselves.
The matter of impeaching Justice Clarence Thomas is categorically different. He failed to recuse himself from cases directly related to matters in which his wife, Ginni Thomas, was directly involved. We still don’t know how far Ginni’s involvement in Jan. 6 even goes. The case for impeaching him is likely far stronger.
Yet impeaching and removing a justice would require a majority vote of the House and two-thirds of the Senate — which, again, Democrats do not have.
While there are several options for directly checking and balancing the power of the Court, each of them faces the fundamental hurdle of congressional support. That said, it doesn’t mean that we shouldn’t try. Consider President Roosevelt’s ill-fated “court packing” plan. In 1937, President Roosevelt proposed a plan to expand the Supreme Court after it struck down some of his most important New Deal policies. Although Congress never passed the “court packing” plan, it accomplished its intended effect: The Court bowed to Roosevelt’s threat of action and was far more accommodating of the next round of New Deal cases.
Further, disciplining the Court fundamentally means exposing the Court to the power of the political branches of government. And that requires moving the public discourse about the Court. Proposing plans to do just that — even if they fail — moves the Overton window, socializing the idea that the Court can and should be reformed.
Indeed, the justices have no robes. Consider the precedent on which the Court’s current juridical supremacy sits. Many of us would have learned in grade school that judicial supremacy is founded in the Court’s ruling in Marbury v. Madison. Yet, that’s not what Marbury holds at all according to Larry Kramer, judicial historian and former dean of the Stanford Law School (I recommend listening to Ezra Klein’s recent interview with Kramer). Instead, he argues that when interpreted in context, Marbury does not imply that the Court is supreme, but simply that the Court alongside the other branches of government also has the power to interpret the laws.
The Court’s actual power, Kramer argues, sits at the fulcrum of competing interests, which it has exploited to gain strength. Its supremacy exists in its ability to operate when political power is divided. All of this forces us to work to forge a new consensus about the role of the Supreme Court vis-a-vis the rights of the people in a democratic society. It requires us to do the political work or negotiating and renegotiating what the power of the institution ought to be.
It takes persistent organizing, advocating, and of course, voting. That’s not easy work. But who said that democracy was easy?