How to Restrain an Out of Control Supreme Court

With the U.S. Supreme Court facing historic levels of public disapproval and an extremist majority of the justices seemingly hell bent on imposing their personal views - many religious and anti-democratic - on the majority of citizens, the Court appears to be an institution that is out of control and on the verge of losing legitimacy in the eyes of most Americans.  Indeed, to the majority of the current justices, the law is whatever they say it is and the rights of citizens can be stripped away on their whims and/or to punish those whom they disapprove. It is radical minoity rule writ large. It is also a recipe for social instability and popular unrest.   A piece at Politico reminds us that Congress has the power to rein in the out of control Court and to even strip it of jurisdiction over issues (e.g., the right to privacy in one's personal life which the Courts seemingly wants to eliminate) and types of cases - something that would be welcomed if legislation could make it through Congress.  It is clearly an issue that citizens need to bring up to the members of Congress and Senators.   Here are article highlights: 

Last December, during oral arguments in Dobbs v. Jackson Women’s Health Organization, the case in which the Supreme Court overturned Roe v. Wade, Justice Sonia Sotomayor noted that “there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.”

It was a remarkable observation. Sotomayor’s primary intent was to argue that rights and prerogatives need not be explicitly delineated in the Constitution for them to exist. The right to privacy — more specifically, the right to terminate a pregnancy — does not appear anywhere in the document, but neither does the Supreme Court’s power of judicial review. Both exist by strong implication.

It’s an observation worth revisiting. . . . Six conservative justices, enjoying life tenure on the bench, are fundamentally reshaping the very meaning of citizenship. Their power to do so is seemingly absolute and unchecked.

How did we get here?

Liberal critics of today’s judicial activism are right when they note that the Supreme Court essentially arrogated to itself the right of judicial review — the right to declare legislative and executive actions unconstitutional — in 1803, in the case of Marbury v. Madison. There is nothing in the Constitution that confers this power upon the only unelected branch of government.

But that doesn’t make the court more powerful than the executive and legislative branches. Acting in concert, the president and Congress may shape both the size and purview of the court. They can declare individual legislative measures or entire topics beyond their scope of review. It’s happened before, notably in 1868, when Congress passed legislation stripping the Supreme Court of its jurisdiction over cases related to federal writs of habeas corpus. In the majority decision, Chief Justice Salmon P. Chase acknowledged that the court’s jurisdiction was subject to congressional limitation. Subsequent justices, over the past century, have acknowledged the same.

That’s the brilliance of checks and balances. In the same way that Congress or the Supreme Court can rein in a renegade president, as was the case during Watergate, the president and Congress can place checks on an otherwise unconstrained court, if they believe the justices have exceeded their mandate.

It’s clear from the record that the men who wrote the Constitution intended the Supreme Court, and the lower federal courts, to enjoy a constitutional veto over acts of Congress and of the states.

But they did not intend this power to be unchecked or unlimited.

By now, it’s well-known that Congress can change the size, and thus the composition, of the Supreme Court by simple legislation. Court-packing, as it’s been called since 1937, when President Franklin Roosevelt unsuccessfully attempted to circumvent a hostile court by expanding its membership, is a deeply controversial practice.

Critically, but less widely understood, the Constitution also grants Congress the power to strip the Supreme Court of its jurisdiction over specific matters.

In theory, Congress could very easily pass legislation denying the Supreme Court jurisdiction over a new voting rights act, a law codifying the right to privacy (including abortion rights), and other popular measures. If they so chose, Congress and the president could go further, reducing the court to a shell of its former self, leaving it to adjudicate minor matters of little significance. Of course, with the filibuster in place, this outcome is about as likely as a bill expanding the court’s membership, which is to say, very unlikely.

Ultimately, it is the responsibility and prerogative of the executive and legislative branches to encourage greater restraint and humility on the part of the judiciary.

Judicial review is well-rooted in American political tradition. But so are checks and balances. To save the Supreme Court from itself, Congress might first have to shrink it.