You Can’t Fix the Supreme Court Without Also Fixing Congress

The following is excerpted from Elie Mystal’s new Nation podcast, Contempt of Court.

The U.S. Supreme Court is pretty much the most powerful high court in the entire world: Other modern democracies get along just fine without having nine unelected rulers in robes telling Parliament or the prime minister what they can and can’t do. Maybe we should try listening to the rest of the world about how to run a democracy?

Or maybe we should try listening to the authors of our own Constitution? Because at no point did the people who designed the government give the Supreme Court the power to veto the actions of other branches of government.

Instead, that is a power the court gave to itself. The power to overturn acts of Congress, or of the president, is called judicial review, and it’s a power the Supreme Court gave to itself in the 1803 case Marbury v. Madison. There, for the first time, the court made itself the final arbiter of which laws Congress gets to pass.

Some think that we, or at the very least Congress, should take that power back, something lawyers call jurisdiction stripping. The idea is simple: Congress, not the Supreme Court, is fully capable of determining what is, and is not, constitutional. And it has the constitutional authority to strip from the Supreme Court the power of judicial review and, with it, the hubris of nine unelected people telling its co-equal branches of government what they can and cannot do.

I talked with University of Michigan Law School professor Leah Litman about the increasingly popular idea of applying term limits to Supreme Court justices, and Litman argued that jurisdiction stripping is key to putting the Supreme Court back where it belongs. This conversation has been edited and condensed for clarity.

Elie Mystal: What Supreme Court reforms do you think would work?

Leah Litman: Maybe this is the lawyer or law professor in me. I want a package on two fronts. I want a package of reforms about the Supreme Court, but because part of that package of reforms would involve disempowering the Supreme Court in some respects, I think we also need to reinforce the democratic legitimacy of other institutions.

If you decrease the power of the Supreme Court, you are increasing the power of Congress and state legislatures. But those institutions are subject to partisan gerrymandering, racial gerrymandering, Senate malapportionment, and whatnot. And so if you are going to be relying on those institutions more, you need to do things that address those democratic deficits with those institutions as well.

I think that’s part of court reform, because in order to disempower the court, you need to reinvigorate the institutions that will be empowered.

So now my package of court reforms: in addition to term limits, expanding the court and some jurisdiction stripping, specifically proposals that limit the Supreme Court’s ability to strike down federal statutes on the ground that they are unconstitutional. In my preferred world, if the Supreme Court thinks that a federal statute is unconstitutional, it essentially remands it to Congress and Congress can decide whether to reenact it.

How did you come to embrace court reform as a thing that needs to happen? One of the things that I’ve been saying a lot is that very few people show up from 3L-year law schooling like, You know what? We need to burn it down. Like, very few people start off as court reformers. They experience life, watching the Supreme Court actually do what it does, which kind of brings them there. How were you brought to a position of reform over your personal experience?

I think most people who knew me in law school and afterwards are a little surprised that I have embraced this so strongly. I was kind of a typical law student, center-left, who was very interested in institutions and laws and wanted to see them work. Then I clerked on the Supreme Court when they heard the first constitutional challenge to the Affordable Care Act, and I thought, This is not a sensible way to run a constitutional democracy.

I mean, that year the justices came within one vote of dismantling the entire ACA because they were fixated on the idea that one day the federal government would make you buy broccoli, and they almost took away health insurance from millions of people for that reason. And so that was, I’d say, a significant turning point in my orientation to the court and legal profession in general.

And I understood at that point that things were happening, they were not good, and they were probably going to get worse, just based on some observations. Then seeing what has happened in the decade since: how Senate Minority Leader Mitch McConnell has played unilateral, asymmetric constitutional hardball to seize control of the federal courts, and then seeing whom they’ve been appointing to the federal courts and what those appointees have been doing. All of that, I think, is fundamentally inconsistent with core aspects of being a multiracial democracy. And because I would prefer to live in a multiracial democracy where women are not forced to give birth to children against their will and are not forced to become mothers against their will, I came to embrace court reform.

That’s a fairly standard story, actually.

Exactly. It’s not that shocking. Part of me believes it to be true, though a part of me is also hoping it to be true, that the conservative legal movement vastly underestimated how radicalizing their actions over the past decade have been to people who were normies, who were institutionalists, and who were not exactly fire-breathing flamethrowers.

I think if they’ve underestimated it, it’s only because the institutional establishment, Democratic normies, that they actually interact with every day have not been radicalized. Senate Judiciary Chairman Dick Durbin, not radicalized. Senator Chris Coons, not radicalized. Most of the Democrats on the Senate Judiciary Committee are there because they are not radicals in terms of these issues. And so if you are a Republican looking at this, all you can possibly think is, Wow, I’ve punked these people and they’re too cowardly to stand up to me. I’m gonna do it some more.

I think you raise a really important point that if you disempower the court, you are, by necessity, re-empowering other institutions of government. One of the things that I have said, especially when we talk about ethics, is that the only group of people I can think of that are less ethical than the current Supreme Court is the wretched hive of scum and villainy that is Congress.

I am not blind to the fact that having Congress be in charge of deciding what ethics are for the Supreme Court might be the right solution, but it’s not a fun solution, right? It’s not an obvious solution, given what Congress is.

And I think that when you talk about disempowering the court through various means, you’re absolutely right to point out that that means that Congress, and especially rando state legislatures, becomes way more powerful. Talk to me about those reforms, because what do you do about that?

This is part of where I think the importance of court expansion comes in, because those reforms are probably going to happen in part by statutes, and we actually need courts that would be willing to enforce those statutory reforms. Imagine a federal statute that prohibits partisan gerrymandering, right? It doesn’t allow states to draw legislative districts in ways that allow one political party to retain control even though a majority of voters vote for the other party, or it doesn’t create a bunch of safe districts where you can just elect Marjorie Taylor Greenes across the country because they’re supermajority-Republican districts that are never going to elect Democrats. I think that a federal statute prohibiting partisan gerrymandering would go some way toward reinvigorating both state legislatures as well as the House of Representatives. Also, helping turnout in statewide elections, like for senators, because when you have more-competitive districts, then people know their vote counts and they’re more likely to go out to vote. I think that a federal statute that prohibits partisan gerrymandering is helpful. And the reason why court expansion is necessary for that is I’m not confident that this Supreme Court would 1) uphold a federal statute prohibiting partisan gerrymandering and 2) even if it did, meaningfully enforce it according to its terms.

A second component would be prohibiting vote dilution, essentially diluting the voting power of racial minorities. We in some ways have a statute that already does this, the Voting Rights Act, but that’s again back to the importance of court expansion. The Roberts court blew part of it up, and it has whittled down the other [part] by refusing to interpret it according to its terms. And so I think that those two provisions, in a world with courts that were actually willing to allow Congress to facilitate multiracial democracy, those would go at least some of the way toward reinvigorating both state legislatures as well as the House of Representatives.

There are some things you could do, like creating the opportunity for D.C. statehood, Puerto Rico statehood, that would address some of the Senate malapportionment. But there are others as well: addressing the filibuster in ways that allow only groups of senators who represent a majority or a supermajority of the country to filibuster legislation. That’s another way of kind of addressing senate malapportionment. So those are some possibilities, all of which I think would take important steps in allowing us to put more trust in institutions that would be empowered in the world and where the court would be disempowered.