NEWS & VIEWS
The Supreme Court has arrogated itself over the other branches of government — and trampled the rights of Americans. It’s time to fix that.
SHUTTERSTOCK
The Incision
How to fix the Court B y Abdul E l- S ayed
“Judicial supremacy” is
the construct that the Supreme Court is the final arbiter of the constitution — that its authority in interpreting the Constitution supersedes the other branches of government. Like so many aspects of modern government, we ascribe judicial supremacy a certain ahistorical concreteness, as if because it came before us, it must be essential to the way the framers intended our government to function. But the framers, so fearful of a tyrannical government, held above all that there should be a balance of powers across the branches. If the past few weeks have taught us anything, it’s that our system suffers from a profound imbalance. Indeed, in ignoring the Court’s own internal check of stare decisis, in writing sweeping decisions intended to foreshadow yet more decisions that would destroy American liberty as we know it, it’s time to exercise those checks. That power sits fundamentally with Congress, which has the authority to expand the Court, to limit the Court’s jurisdiction, alter the Court’s composition, or to limit its funding. Here, let’s engage with some of the opportunities and challenges posed by each.
Expanding the Supreme Court Expanding the Supreme Court would imply increasing the number of justices from the current nine. Importantly, Article III of the Constitution, which establishes the Court itself, says nothing about its composition. And the Court has had various numbers of justices in the past. The first Supreme Court had only six justices. Indeed, the Court’s composition has been understood to be alterable. In 1866, a Republican-controlled Congress passed the Judicial Circuits Act to limit the Court to six justices specifically to sidestep the appointment of Henry Stanbery to the Court by President Andrew Johnson — President Abraham Lincoln’s vice president and successor. Both Johnson and Stanbery supported readmitting former Confederate states to the Union without reservations that they guarantee the rights of newly freed Black people. In 1869, with that threat averted, Congress passed the Judiciary Act, which returned the number of justices to nine. It also stipulated that each of the country’s nine circuit courts should have a circuit court judge who would live there and have similar power and
12 July 20-26, 2022 | metrotimes.com
jurisdiction to a Supreme Court justice assigned to that circuit. But today, there are 31 circuit courts. Needless to say, the Supreme Court has not grown with the expansion of judicial circuits. Given that Congress can and has altered the size of the Court as it chooses, this is a plausible approach to addressing the growing power of the current Court. There are, of course, several challenges to this. Any act of Congress will require 60 votes in the Senate in order to overcome a filibuster, which Democrats do not, and likely will not have considering the apportionment of the Senate. That is, of course, unless Democrats get enough votes to drop the filibuster altogether. But that sets up another challenge: not that adding justices to the Court would be too hard, but that it would become too easy. And every time a party had a trifecta of government control, it would add a new round of justices, leading to an ever increasing number of justices on the bench. Limiting the Court’s jurisdiction Article III of the Constitution reads, “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.” This allows Congress to limit specifically the kinds of cases that can be appealed to the Supreme Court. Along with the ability to define the jurisdictions of lower courts, this “jurisdiction stripping” can be used to curtail the power of the Court overall, and also to force certain aspects of the law back to the political branches of government. A recent attempt at this came via the Military Commissions Act of 2006, which tried to strip Guantanamo Bay detainees of the ability to appeal cases in federal courts. One could imagine far more productive uses of jurisdiction stripping, such as to protect federal courts from appellate oversight over issues such as access to contraception, the definition of marriage, or the right to an abortion should any of these be codified by Congress. Revoking life tenure Article III contends that Supreme Court justices “shall hold their offices during good behavior.” Since it does not specify a specific term, it’s assumed that this implies life tenure conditional on “good behavior.”
