Putting the Supreme Court in its place

Fishkin and Forbath on what is going to be necessary as a Supreme Court supermajority continues to impose its will on the actual majority faction of the country:

For American progressives, the Supreme Court has become a maddening institution. The comforting notion of the court as umpire lies in tatters. It is Justice Samuel Alito’s court now: methodologically flexible but ideologically rigid.

Last term, in Dobbs v. Jackson Women’s Health Organization, the court struck down Roe v. Wade on ostensibly originalist grounds, yet this term it is poised to strike down affirmative action on grounds that make a mockery of original understandings. The court proclaims its fidelity to the past but is actually a font of legal innovation, inventing, for example, novel counter-reforms to the American political system that entrench minority rule by the Republican Party.

These disparate outcomes are consistent in precisely one way: They turn the ideological and partisan preferences of conservative Republicans into legal changes, and these are reshaping our political and economic systems, making them more hospitable to oligarchy.

But the Supreme Court does not have the only word, or even the last word, on the meaning of the Constitution. Liberals must rediscover that basic fact, and the tradition in American politics in which political actors outside the court, especially Congress and the president, use the political tools available to them to assert their own rival constitutional visions, sometimes setting up high-stakes political confrontations with the court.

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Today that argument has very little chance in court. That’s why it is up to the political branches to press the constitutional argument and check and balance the Supreme Court.

There are many democratic tools to do that. Congress can expand the court by adding new justices, and although term limits for justices would require a constitutional amendment, Congress could enact various proposals to restructure the court to allow for new justices to be appointed regularly, perhaps every two years.

It can also strip the federal judiciary of jurisdiction to overturn vital reforms. The Constitution gives Congress power to define and restrict what kinds of appeals the Supreme Court can accept and what kinds of cases the lower federal courts can hear. Congress uses this power today more often than one might expect: This year’s Inflation Reduction Act, for example, contained some modest provisions insulating certain administrative actions from judicial review.

Other tools deserve much more attention. Congress can delay jurisdiction, giving laws time to work — and become popular — before review is ripe. It can create politically unpalatable choices for the court through backup provisions that take effect if a law is struck down. None of these tactics will sit well with most Americans if they seem like nothing more than tit-for-tat politics. Progressives must also persuade a majority of Americans that the court is wrong about the Constitution — that it has the Constitution backward. The rights this court denies and the laws it strikes down are often ones the Constitution demands.

Some people have pointed out the meta problem that an out-of-control Supreme Court is likely to strike down court expansions and/or severe exceptions and regulations of the Court’s jurisdiction, despite their unambiguous constitutionality. But in any context in which Congress has the support to pass these measures, they will have a lot of other tools to retaliate against the courts too. The structural advantages the Republican Party currently enjoys takes most reform measures off the table for now, but the broad American left has to be thinking of the longer term.