Dec.08

electoral-vote.com

Dem 47

   

GOP 53

Can the Supreme Court Be Reined in?

With its decision to allow Texas to tear up its map mid-cycle just to give the Republicans more House seats (see above) the Supreme Court has defined itself as a wholly owned subsidiary of the Republican Party. There is no other way to explain it. The question for the Democrats now is: If they get the trifecta in 2028, which is probably at least a 50-50 proposition, what can they do about it? Here are a few thoughts on what they could do then. However, all of them require the Democrats to understand that politics ain't bean bag and do a mode switch from being Dr. Jekyll to being Mr. Hyde. It won't come easy, but bringing a water pistol to a gunfight is not a good strategy.

All of the possibilities below require Congress passing new laws. This immediately brings up the issue of how to deal with the filibuster, so let us get that out of the way first. All of these require the Democrats to understand that if they have full power, they do not have to be nice to their opponents, who certainly have not been nice to them recently. They merely have to be technically legal. Here are some ways to get around the filibuster:

• Abolition: This is conceptually the easiest way. Just change the Senate rules to abolish it completely. There is no rule stating that it takes 60 votes to pass a bill. Rule 22 allows a senator to speak as long as he or she wants to, on any subject the senator thinks is germane to the matter at hand unless cloture is invoked by three-fifths of the senators. Replace Rule 22 with a new rule stating that once debate has started, each senator may speak for up to 1 hour unless the full Senate approves a different limit.
  
  
• Change the Threshold: Currently the threshold for cloture is three-fifths of the Senate. The threshold could be changed to 51 votes or whatever number of seats the Democrats hold in 2029. The "argument" could be that "three-fifths" rules are a throwback to a different three-fifths rule in the Constitution that is racially disgusting (for allocating House seats, slaves were counted as three-fifths of a person).
  
  
• Carveouts: There are many "carveouts" to the filibuster now. Confirmation votes for judges and justices cannot be filibustered. Budget reconciliation bills cannot be filibusterered. Fast-track trade agreements cannot be filibustered. There is actually quite a long list of carveouts. Carveouts could be added for election laws, gerrymandering laws, and anything thing on the Democrats' menu.
  
  
• The Jimmy Stewart Solution: The bloodiest option is to make the minority party actually filibuster. Read the Bible. Read Shakespeare. Read the Houston phone book. Read whatever you want. But Senate rules forbid sitting, eating, drinking, going to the bathroom or leaving the well of the Senate during a speech. Run the Senate 24/7 and have the presiding officer enforce the rules vigorously. If a senator forgets his reading glasses when he begins speaking, deny a request to go to his or her desk to get them and countermand a request to the Senate's sergeant-at-arms to fetch them. Let each senator get one turn to speak until he or she drops of exhaustion. If that happens, call for a quorum before calling for an ambulance.
  
  One strategy here would be to spend the spring of 2029 compiling a giant bill with Sec. 1 restricting the Supreme Court's appellate jurisdiction (see below), Sec. 2 being the "John Lewis Voting Rights Act," Sec. 3 being "For the People Act," Sec. 3 being the "Antigerrymandering Act," and so on. A thousand pages, 2,000 pages, whatever it takes. Then hold the debate in August (when the Senate is normally on vacation because the weather in D.C. in August is unbearably hot and muggy). Instead of having the air conditioning on in the Senate chamber, the presiding officer would instruct the sergeant-at-arms to set the thermostat to 110°F and turn the heating system to the absolute maximum it can go.
  
  With the chamber at 110°F, how long could senators stand and talk with no water? 3 hours? 6 Hours? 12 hours? 24 hours? We don't know, and maybe young and vigorous senators like Sen. Josh Hawley (R-MO) could match Sen. Cory Booker (D-NJ) at 24 hours, but we really doubt that Sen. Chuck Grassley, who will be 95 in August 2029, could manage even 6 hours. Suppose 48 Republican senators averaged 12 hours each—and that would mean each 6-hour senator would need a matching 18-hour senator to get the average to 12. Would this be nice? No. Was it nice when Sen. Mitch McConnell (R-KY) refused to hold a vote for 9 months on Barack Obama's replacement for Antonin Scalia when he died, and then rammed through Amy Coney Barrett in 5 weeks after Ruth Ginsburg died? Also no. Again, politics ain't bean bag. If 48 senators averaged 12 hours each, in 24 days they would also have spoken as long as they could and a vote would be taken. If they could average only 8 hours each, the debate would take only 16 days. Would the Democrats be unhappy taking 2-4 weeks get all their priorities through? We doubt it.

For more ways, see this analysis. So much for the filibuster. Now assume the Democrats could pass whatever bills they wanted, either individually or as one or more massive bills, if need be. What could they do to rein in the Supreme Court by legislation, since we are assuming a constitutional amendment is unrealistic in the current polarized climate.

First, they could note that SCOTUS basically runs the country now. Every major issue ends up there now and is generally decided along party lines. That was never the founders' intention. Their model was the British system, except with an elected king with limited powers who could be impeached if Congress felt he had abused his powers. In sixth grade, kids learn about the "checks and balances" and the three co-equal branches of government. The checks and balances are real. There are many of them. The "co-equal" stuff is nonsense. The branches are not co-equal and were never meant to be. Art. I of the Constitution is about Congress. Congress was put first because it was intended to be the most powerful branch. It was given the power to make laws, raise taxes, and determine how the government would spend the people's money. The president is in Art. II. His job was to run the Executive Branch, enforce the laws Congress passed, and be commander-in-chief of the Armed Forces. The Judicial Branch is in Art. III and was practically an afterthought. In the British system, the courts did not run the country. Art. I is 2,203 words; Art. 2 is 1006 words; Art. 3 is 361 words. That says something about how important each one was perceived to be.

And as to those "checks and balances," there aren't a lot of checks on the Supreme Court. Maybe it is time for some. Let's consider some ways Congress could rein in SCOTUS:

• Expand the Court: This is the obvious one. Nothing in the Constitution sets the size of the Supreme Court. It has varied from 7 to 10 members over time. The size is set by law. Congress could pass a law setting it to 13, giving the president four new picks and Democratic appointees a bare 7-6 majority. But some people consider 13 an unlikely number, so they could go to 15 and a more solid 9-6 majority.
  
  
• Change the Algorithm: Currently the Court is set to 9 members by law and new justices are appointed only when one resigns or dies. It doesn't have to be like that. A new law could allow the president to nominate a new justice after each new Senate is seated, every 2 years. In this way a two-term president would get four appointments, guaranteed. Alternatively, one appointment per presidential election victory. This solves a current problem that how many appointments a president gets is determined partly by God (deaths) and partly by strategic retirements of the justices. In this scheme, vacancies would not be filled at all and the size of the Court would vary over time. Sometimes it would be an even number and the Court could split, say 4-4 or 5-5. In that case, the circuit court ruling would hold, but only for its own circuit. It the Court is so divided, maybe it is better not to have a narrow national ruling, often along party lines.
  
  
• Jurisdiction stripping: The second paragraph of Art. III, Sec. 2 reads as follows:

  In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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. (Our emphasis)

  In other words, Congress has the clear authority to strip SCOTUS of its appellate authority in almost any way Congress so decides. Elections? Nope. Abortion? Nope. Guns? Nope. Plaintiff is a redhead? Nope. Congress can make whatever exceptions it wants to. Could Congress do something stupid? It could, and has upon occasion, but every 2 years the voters can replace the entire House and one-third of the Senate if they don't like the job Congress is doing.
  
  One obvious first exception is to ban SCOTUS from taking on any cases involving the Court itself or any of the justices. The principle here is: Nemo Judex in causa sua (No one shall be a judge in their own case). To give this teeth, the law could make it a federal felony for a justice to vote on any case taken in defiance of Congress' ban, with a penalty of 3-36 months in prison, to provide for plea bargains (which might involve resigning to get a shorter sentence). The Constitution does not state that justices serve for life. It states that justices serve during "good Behaviour." This new law could state that being convicted of a federal felony does not constitute "good Behaviour." So there would now be two ways to remove a justice: impeachment and conviction or the justice being convicted of a federal felony.
  
  
• Judicial Review: Nothing in the Constitution gives SCOTUS the power to throw out laws duly passed by Congress. Nothing. Zero. Zilch. Nada. In 1803, in Marbury v. Madison, the Court just did it and nobody said: "Whoa!" There may have been some tradition before that, but for textualists and originalists (including many Republican-appointees to SCOTUS), what matters are the actual words in the Constitution and there is nothing there about tossing out duly passed laws. Congress could pass a law saying that "judicial review" really is a thing and the Court may declare a law to be unconstitutional, but only in a unanimous decision. If one or more justices vote no or don't vote, the law stands. This would prevent narrow partisan decisions.
  
  It is possible the Court might bridle at such a law and declare that law to be unconstitutional. However, if Congress has already passed a law stripping the Court of jurisdiction in cases involving itself and making it a federal felony for justices to vote on cases Congress has ordered it not to take on, the AG could indict any justice who voted on such a case (and make it clear in advance that indictment will follow any such vote). If a justice is convicted and loses the appeal in the D.C Court of Appeals, the president could then go on television and say: "Since by law the Supreme Court may not hear appeals on cases involving itself or its members, the case is over and the district judge will now issue the sentence. And by the way, since a recent law defines being convicted of a federal felony as "Bad Behaviour" today I will send my nomination of [X] as the replacement to the Senate. If the Senate confirms her, [X] will replace the convicted justice." If the Senate votes to confirm and the old justice is in prison, who would be there to prevent this, especially since the Supreme Court had already been stripped of the authority to take on this kind of case?
  
  Would this cause a constitutional crisis? Not really. Consider this situation: Imagine that five of the justices are vegetarians and animal lovers. In a case relating to the powers of the FDA to regulate food safety, the Court's ruling stated that animals have a Fourteenth Amendment right to due process and no slaughterhouse may kill a cow unless the cow has had its day in court with a government-appointed attorney and the judge has sentenced the cow to death. Then the president announced: "Congress has never granted the Supreme Court the authority to ban meat, so I am just going to ignore its ruling and send the veep over to McDonalds to fetch me a nice hamburger for lunch." Would that be a constitutional crisis?
  
  Would passing laws stripping the Court of jurisdiction and making judicial review explicit be daring (but legal) moves? Sure. Was McConnell's decision not to bring Merrick Garland's nomination to a vote for 9 months a daring (but legal) decision? Sure. Guess what? Both sides can play the game of using all of your power to the max.
  
  
• A Constitutional Court: Congress could create a seven-member Constitutional Court, and insert it between the circuit courts and the Supreme Court. It would handle all cases involving the constitutionality of laws. There would be no appeal from it because the law creating this court would strip the Supreme Court of the appellate authority in cases decided by the Constitutional Court. The Supreme Court would still have the authority to decide how much water Arizona and Colorado could each take from the Colorado River, whether California could have stricter mileage laws than the federal one, and other non-constitutional cases. This is not a permanent fix, but does rein in the current Supreme Court. Of course, the Constitutional Court could operate under some of the rules outlined above, or special rules (like, the seven deciding justices are picked at random from a group of 20 appellate judges for each case). That would serve to reduce the impact of partisan gamesmanship.
  
  
• Senior Status: Congress could pass a law stating that justices must take senior status at some age, such as 65, 70, or whatever the current Social Security retirement age is. A senior justice would draw his or her full salary until death, could attend all meetings the justices held, cite laws and precedents, give advice on how to vote, and so on, but would not have a vote on any case. Could Congress enact such a law? Sure. All it would need is 218 votes in the House, 51 votes in the Senate, and a presidential signature. Bingo. A new law. That's where new laws come from. They are not brought by a stork. Could the Supreme Court declare the "senior status law" unconstitutional? Not if Congress had already passed a law stripping the Court of jurisdiction in cases involving itself.
  
  One subtle issue we haven't addressed is what happens to cases that the Court is not allowed to consider. Does the circuit court decision hold? Can circuit courts declare laws unconstitutional? That has to be made explicit in laws stripping the Supreme Court of appellate authority.

A lot of these things relate to Congress taking back its Art. I powers and not being a doormat. Would SCOTUS be happy? Possibly not, but Congress can relieve it of the authority to intervene in cases where Congress doesn't want that. Congress unquestionably has the authority to limit SCOTUS' appellate jurisdiction. The words are right there in the Constitution as part of those good ol' checks and balances.

While it is at it, Congress could also take back a lot of the power the president has in emergencies by passing a law saying a presidential emergency declaration is valid for only 7 days, after which both chambers of Congress have to confirm the emergency and agree on how long the special emergency presidential powers last. Would any of the above be bold? Sure, but unlike the current administration, it would be bold and legal at the same time. (V)