Nobody benefits from the Supreme Court wielding unbridled power; nobody should claim victory atop the Court’s recent heap of broken precedents and blasted bedrock judicial principles.
Despite its flaws, our democracy derived legitimacy from a Constitutionally enshrined tripartite system in which each branch’s power was checked and balanced by the others. If we hope to resurrect (or construct) a true democracy from the current morass of institutional decline, we should all support executive and legislative rebalancing of the Court’s power.
Today, Senator Sheldon Whitehouse introduced one such means of doing so: the Supreme Court Review Act of 2022, which creates a mechanism for expedited Congressional review of Court decisions misreading federal statutes or curtailing existing constitutional rights.
This is a first step towards stanching the hemorrhagic flow from our most recently inflicted Supreme Court wounds. These include Dobbs v. Jackson Women’s Health Organization, which revoked a personal constitutional right that the Court has reaffirmed dozens of times over the last half-century (and which, as Justice Thomas gloated, would trigger a cascade of revoking others, such as gay marriage) and West Virginia v. EPA, which invented an entirely new judicial doctrine to curtail EPA’s authority to systematically reduce greenhouse gas emissions. By providing an expedited process requiring only majority approval, the Review Act sidesteps legislative dysfunction by bringing measures directly to the floor in both chambers and preventing a Senate filibuster. When the Court narrows or eliminates constitutional rights, the Review Act permits Congress to swiftly replace what has been lost with a newly created statutory version. And when the Court misinterprets a federal statute, Congress can immediately amend the law to clarify what it originally meant.
Is the Review Act enough to rescue the Court from a historically low public opinion of its legitimacy? Probably not, but other more immediately impactful means of doing so either come with their own dangers or are difficult to envision garnering legislative accord.
For example, while anticipated by the framers and constitutionally permissible, eliminating the Court’s jurisdiction over some topics or measures beyond its reach is unlikely to yield anything more than legislative whiplash as Congress alternates between party control. Other measures, such as a binding code of ethics and conduct for the Justices and term limits on holding one of the rarified seats, would be welcome complements to restrain and rebalance our system. They would also help to restore faith in the Court as something other than a deeply partisan, disconnected, and ultimately discredited institution.
Ultimately, those with no protections from a governing body wielding unchecked power to overrule the elected branches of government will find themselves further adrift. Without meaningful rights, privileges, and protections to defend, what will inspire them to uphold their side of our increasingly tenuous social compact? Given our deeply divided nation, democracy requires institutions that reflect and respect their equal roles in a delicate balance. Absent significant action from those elected branches to constrain the outsized power the Court has wielded, our rights and privileges will continue their decline and will threaten to prove our democracy a failed experiment.
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