Now that the Democrats are assured the majority in the House of Representatives for the next two years, they can begin to plan their policy agenda going forward. Even if they reclaim the White House and a majority of the Senate in 2020, one of the key legacies of the Donald Trump presidency is the Republican majority on the Supreme Court. Left unchecked, this Republican faction has the power to nullify Democratic policies going forward.
Congress has a few options for pushing back against the influence of the Supreme Court. Here are five, beginning with the most obvious:
1) Overturn Court decisions by constitutional amendment
If a majority of Congress disagrees with the Court’s interpretation of the Constitution, one option is to override that decision with an amendment to the Constitution. This has happened before. The 11th Amendment overturned Chisholm v. Georgia, which allowed citizens of one state to sue a different state without its consent in federal courts.
The 14th Amendment (specifically dual birthright citizenship) overturned Dred Scott v. Sandford, while the 16th Amendment (allowing direct income taxes) overturned Pollock v. Farmers’ Loan and Trust Company.
The obvious limitation to this strategy is that it requires a supermajority of both chambers of Congress and of the states. Any decision by the Republican faction supported by most Republicans in either chamber, or in 13 states, will be impossible to overturn. For example, a proposed amendment to overturn Citizens United has languished in Congress for years while the campaign finance system has disintegrated.
2) Impeach and remove Justice Brett Kavanaugh
A second Constitutional option (possibly under discussion) is to impeach and remove newly confirmed Supreme Court Justice Brett Kavanaugh, or some other current justice. Removing someone from the Court would require an investigation and formal charges by the House Judiciary Committee, a majority vote in the House, a trial in the Senate, and a two-thirds majority.
This approach would need extremely compelling grounds for removal in order to gain support from more than 20 Republicans. As a practical matter, the House would need new information — such as abuse of office, financial improprieties, or further evidence of sexual assault or perjury — to provide the basis for removal, while the search for material would itself be easily criticized as partisan.
3) Expand the Supreme Court so the next Democratic president can fill extra seats
Another proposal, widely discussed among progressives, is simply to allow the next Democratic president to add new members to the Court. There is no constitutional requirement that the Court have nine members, so a Democratic majority could nullify the effects of the 2017 Neil Gorsuch and 2018 Kavanaugh appointments by passing a law to increase the size of the Court.
The disadvantage of this move is that it breaks a norm dating back to 1869. When President Franklin Delano Roosevelt attempted to pack the Court in 1937, he ran into bipartisan resistance to violating this norm in a transparent effort to dilute the influence of an opposition faction.
Breaking the norm may be justifiable in 2021, but it would legitimize future violations of the same norm when Republicans are in power (such as the Republican extension of the “nuclear option” in the Senate in 2017) and, more broadly, may fuel a cycle of retaliation in a system based as much on norms as on rules.
Article III, Section 2 of the Constitution grants the Supreme Court appellate jurisdiction over most cases, “with such exceptions, and under such regulations as the Congress shall make.” Put simply: Congress can declare some legal questions to be outside the purview of the Supreme Court.
On issues where the Court majority has previously acted in error, violated congressional authority, or acted as an extension of the Republican Party, Congress may have a strong argument for excluding the Supreme Court from future cases on those issues.
Two examples: campaign finance laws and the Voting Rights Act. In the latter case, for example, the majority asserted in Shelby County v. Holder that “things have changed dramatically” since 1965. This case’s decision to nullify the pre-clearance provision of the Voting Rights Act unleashed a wave of racially discriminatory election rules and practices across the country, and especially in the South.
As a civil rights decision, it was breathtakingly naïve. As a Republican stratagem, it has set in motion a self-reinforcing cycle of restrictions, electoral success, and more restrictions.
As with Court-packing, the risk of this approach is that it would legitimize similar actions by the other party when the political pendulum swings. A Republican Congress could, for example, pass a law banning abortion that excluded constitutional challenges to the bill from the Court’s jurisdiction.
5) Pass. laws.
In the current political environment, it is understandable that progressives are concerned —and Republicans overjoyed — by the solid Republican majority on the Court. For more than a decade, Congress has struggled to legislate on a range of issues. Even the high point of this stretch, the 111th Congress (from 2009 to 2010) included a second session that petered out as the majority party members realized that the more they accomplished, the madder people seemed to get.
Like nature, politics abhors a vacuum. In the absence of legislative action, Presidents Barack Obama and Donald Trump have rewritten regulations and issued executive orders to enact major shifts in environmental and immigration, and in doing so illustrated the instability of presidential actions.
The federal courts have also become a major source of policy change on campaign finance, same-sex marriage, and voting rights. Whether one agrees with these rulings or not, it is hard to say that the Court is passively “calling balls and strikes” when, in reality, it is a major source of new national policies. This is why the fight over Supreme Court nominations have become so bitter: They are a proxy fight for all the decisions Congress avoids.
Congress, however, can diminish the effect of executive and judicial policymaking by actually passing laws on several fronts, including.
- DACA: Congress could enact its own Deferred Action for Children of Arrivals law so hundreds of thousands of lives do not depend on executive inaction.
- Voting Rights: Congress could nullify Shelby County v. Holder by revising the Voting Rights Act pre-clearance authority.
- Health Insurance: Congress could overturn the Hobby Lobby decision to amend the Religious Freedom Restoration Act to clarify that corporations cannot have religious views and thus cannot avoid providing full health insurance benefits.
- Abortion Access: Since 1973, abortion policy has largely taken the form of states proposing restrictions to abortion and the Supreme Court deciding whether each state law passes constitutional muster. By 2018, the practical effect of these restrictions is that many people have to travel long distances to have an abortion, and may face state-imposed costs and delays when they get there. Congress has the power to invalidate many state laws as restraints on interstate commerce, ensuring continued access to abortion services nationwide.
These are just examples. The main point is that the power of the Republican faction on the Supreme Court depends, in part, on congressional inaction. A proactive Congress can limit Supreme Court overreach.