The Supreme Court was conceived of as a branch of government that would operate above politics, insulated from the passions of the electorate and the machinations of politicians. Today, few people accept this idea of the Court. On June 24, 2022, a Supreme Court dominated by far-right justices overturned Roe v. Wade, the decision protecting women’s right to abortion that had stood for nearly 50 years.[1] In selecting this case to review, right-wing justices were enacting a transparently partisan agenda. In the past two weeks, the court has also reviewed and overturned a gun control measure in New York state and regulations on greenhouse gas emissions. It is now set to hear a case on federal oversight of elections.[2] Most recognize that the Court has become politicized in its decision-making. Fewer recognize that it is in the selection of cases that justices make some of their most impactful (and partisan) decisions. This article gives a brief explanation of the structures that have allowed extremist justices to hijack the Supreme Court and outlines viable congressional action to get our country off this frightening course.
Recognizing the politicization of the Court, many progressives have begun to call for “packing” the Supreme Court with justices sympathetic to the politics of the Democratic party. Currently, nine justices sit on the Supreme Court. This number was arrived at in 1869, when a Republican Congress increased the number from seven to enable President Grant to appoint two new justices. To pack the Court means to do basically what Congress did in 1869–increase the number of seats on the Court so judges sympathetic to the reigning party can gain a majority. Court-packing was attempted on one notable occasion in the twentieth century, after the Supreme Court ruled that Franklin Roosevelt’s National Recovery Administration was unconstitutional. FDR responded by asking Congress to pass a law enabling him to expand the number of justices on the court. The bill failed and is remembered by many as a disturbing example of executive overreach at a time when autocracy was on the rise throughout the world. The downside to court-packing is obvious; it does away with even the pretense of the Supreme Court as a neutral body. It sets a standard whereby any president can consolidate power by filling the Court with loyal followers. The question is, in a day when the Court is already so thoroughly politicized, is there any other option?
To understand the alternative to Court-packing proposed in this article, it is first necessary to understand that the Court exercises an important gatekeeping function before it ever deliberates on a case: the power of agenda setting. This is the power of the Court to decide which cases it will hear. Not every case that makes its way to the Supreme Court is ruled on by the justices. In fact, only about 80 out of every 8,000 cases that reach the Court are ruled on. This delegation of the power of case selection by Congress was codified in the Judiciary Act of 1925 and further cemented with the Supreme Court Case Selections Act of 1988, which ensured that a case could only be heard by the Court at the discretion of the justices themselves.[3] Under the current rules, a case is heard if 4 of the 9 justices agree that it should be heard. The decision-making process is totally secret; no information about these decisions is released to the public. This means that justices have significant power to select cases based on a political agenda.
What if, instead of packing the court, we amended the existing law that gives justices the power to rule on any case they want with zero accountability? The Supreme Court Selections Act can be amended by a simple majority vote in Congress so that the Court is required to issue a justification for any decision to accept or reject a case. As Justice Louis Brandeis said, “sunlight is said to be the best disinfectant”; the case-selection process should be rule-bound and transparent.[4]The justification for choosing a case should grounded in one or more of three factors: 1. The case is the subject of disagreement between different circuit courts. 2. The case concerns an unsettled matter of law on which the Supreme Court has never ruled. 3. The person who appealed the case to the Supreme Courts has made a colorable claim of a violation of the rights, privileges or immunities guaranteed under the constitution and laws of the United States. Finally, and most importantly, carefully circumscribed limits should be placed on the ability of the Court to relitigate prior rulings on which large segments of the population rely. The clear case for these reforms is laid out below.
The well-known legal doctrine of stare decisis holds that courts should defer wherever possible to previous rulings. The purpose of this doctrine, as stated in the Supreme Court case Kimble vs. Marvel Enterprises, is “fostering reliance on judicial decisions.”[5] That is, it is important for the American public to be sure that the judicial decisions that apply today will apply tomorrow. This is especially the case when the decision in question has a major effect on citizens’ lives, as in the case of Roe v. Wade.[6] Millions of women relied on this decision to uphold their right to an abortion. Their expectation that the decision would stand influenced their life choices. For example, women might have been more likely to take out loans for college, assured that their education would not be interrupted by an unwanted pregnancy.
The core doctrine of stare decisis has deep roots in Anglo-American law. It goes back to the thirteenth century, when precedent first began to be employed in legal arguments.[7] Adherence to precedent was regarded as a critical element of law in Early America. Alexander Hamilton wrote in Federalist no. 78, “To avoid an arbitrary discretion in the courts it is indispensable that they should be bound down by strict rules and precedents which serve to . . . point out their duty.”[8] In Commentaries on American Law, James Kent, “the American Blackstone,” wrote, “If a decision has been made upon solemn argument and mature deliberation . . . the community have a right to regard it as a just declaration or exposition of the law and to regulate their actions and contracts by it.”[9] This is an explication of stare decisis much like the one in Kimble—citizens have a right to rely on past decisions when making choices about what actions to undertake and what contracts to enter into.
Congress should immediately undertake to amend the laws governing case selection to carefully prescribe the manner and grounds upon which the Supreme Court accepts or rejects cases. Members of the Revolutionary generation would not have welcomed a regime in which justices radically remold the legal landscape Americans inhabit based on politics. Americans have a right to a dependable body of common law that does not change according to political trends. The best way to ensure this is by establishing strict standards and intelligible principles to guide the Court in the exercise of the power Congress delegates to it. This power is far too consequential to be exercised secretly and at will. These reforms will contain the arbitrary power politically-motivated justices presently wield over American lives while avoiding the pitfalls inherent in court-packing.
We must act with alacrity. The consequences of leaving the Court free from oversight and restraint have become all too clear in recent days. Rulings that protect marriage equality and contraception may well be next to go. This is how cherished democratic institutions forfeit their legitimacy. Associate Justice Anthony Kennedy once said his role as a judge was “to impose order on a disordered reality.”[10] Presently, the judges of the highest court of the land are imposing disorder on the nation. If we have any chance of reversing this course, it must be by replacing the tools that are used to subvert our democracy. Further amending the provisions of the Judiciary Act of 1925 and the Supreme Court Case selections Act of 1988 can be accomplished by a simple majority vote of the House and Senate. Such a vote would merely exercise the longstanding prerogative of congress to review its delegation of legislative power to other branches. Majority Leader Schumer, Speaker Pelosi, and the Biden Administration, together with the Chairs of the House and Senate Judiciary Committee, should waste no time in crafting this legislation and bringing it to the floors.
[1] Dobbs v. Jackson Women’s Health, citation pending (2022).
[2] New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022)., West Virginia et. al. v. Environmental Protection Agency et. al., citation pending (2022)., Moore v. Harper, citation pending (2022).
[3] Judiciary Act of 1925, 28 U. S. C. §1925 (2018)., Supreme Court Case Selections Act of 1988, 28 U. S. C. §1257 (1988).
[4] Louis D. Brandeis, What Publicity Can Do, McClure’s, Dec. 20, 1913, at 10.
[5] Kimble vs. Marvel Enterprises, 576 U.S.__(2015).
[6] Roe v. Wade, 410 U.S. 113 (1973).
[7] Leon Green, Development of the Doctrine of Stare Decisis and the Extent to Which It Should Be Applied, 40 ILL. L. REV. 303 (1945-1946), at 304.
[8] Alexander Hamilton, Federalist no. 78 (Clinton Rossiter ed., 1961), at 471.
[9] James Kent, Commentaries on American Law* (O. W. Holmes, Jr. ed., 14th ed., Boston, Little, Brown, & Co. 1896), at 475-76.
[10] Michael Brendan Dougherty, Anthony Kennedy Can’t be Allowed to Die, The National Review, Jan. 23, 2018, at para. 3.
inourname 