Democrats don’t have the votes right now for major Supreme Court reform. But if they pick up seats, they could have many options.
Editor’s note, July 2: The following is an updated version of an article that originally ran in Vox in October 2020. We are republishing it with revisions to reflect the Court’s most recent term.
The Supreme Court’s just-concluded term was a bacchanalia of reactionary indulgence. Roe v. Wade is dead. Gun laws throughout the nation are now in peril. The Court is pummeling the wall separating church and state — and it isn’t afraid to tell easily disprovable falsehoods to achieve this goal. The Court’s GOP-appointed majority curtailed the EPA’s power to fight climate change, and gave themselves an open-ended veto power over any federal regulation.
It’s likely that the worst is yet to come. Three “shadow docket” decisions this past term suggest that the Court is about to slash safeguards against racial gerrymandering. Another case looming in the next term, involving North Carolina’s gerrymandered congressional maps, is likely to give Republican state legislatures the power to defy their state constitution when writing election laws. And that’s after the Court has spent the last decade dismantling the Voting Rights Act and stripping the federal courts of any authority to fight partisan gerrymanders.
The Court’s Republican majority isn’t simply handing down bold conservative policy decrees, it is undermining democracy itself.
Indeed, the GOP owes its control of the Court to an anti-democratic system that effectively gives extra votes to Republicans. Only three justices in American history were appointed by a president who lost the popular vote, and confirmed by a block of senators who represent less than half of the country. All three were appointed by Donald Trump, and all three sit on the Court right now.
Neither Congress nor President Joe Biden, however, are powerless against an anti-democratic Supreme Court. The elected branches have broad powers to rein in a rogue judiciary, or to limit the scope of at least some of the Court’s decisions. The greatest of these powers is court-packing — adding additional seats to the Supreme Court to dilute the votes of Trump justices who lack democratic legitimacy.
Realistically, Democrats lack the votes to push that or other meaningful Supreme Court reform through Congress right now. Such a proposal would require changing or abolishing the filibuster, as it’s nigh impossible to imagine 10 Republican senators voting to diminish the power of an institution controlled by Republicans. And at least two members of the Senate’s narrow Democratic majority oppose filibuster reform.
But just because court reform isn’t currently politically viable doesn’t mean it’s not worth considering, especially if Democrats somehow manage to pick up larger majorities in a future Congress. There are several options to deal with an increasingly partisan Supreme Court. Here are 10 of them.
1) Court-packing
Let’s get the biggest weapon in the arsenal of democracy out of the way first. If Congress has the votes, it could simply add more seats to the Supreme Court. President Biden would then name several new justices to fill those vacant seats, who could be confirmed by a Democratic Senate.
Although the Constitution provides that there must be a Supreme Court, it does not say how many justices shall serve on that Court. Over the course of American history, the Court has had as few as five seats and as many as 10. A bill pending in Congress right now would add four seats to the Court, transforming the 6-3 Republican majority into a 7-6 Democratic majority.
That said, there are several good reasons for Democrats to be cautious of packing the court, at least as an initial tactic to rein in the Court’s current majority.
One is that getting a court-packing bill through Congress would probably require extraordinarily high levels of public anger at the Supreme Court. Shortly after President Franklin Roosevelt won his first reelection bid in an historic landslide, he proposed adding seats to the Supreme Court as a solution to reactionary justices who sabotaged many of his New Deal policies. But even at the apex of his political might, Roosevelt struggled to build support for his plan.
Indeed, some historians blame Roosevelt’s court-packing proposal for shattering his coalitions and preventing him from pushing bold policies through Congress. Perhaps because of this history, Biden has been reluctant to embrace court-packing in the past.
The other problem with adding seats to the Court is that, absent a constitutional amendment fixing the number of justices on the bench, Republicans could potentially retaliate if they regain control of Congress and the White House.
Just as a Democratic Congress can transform a nine-member Court with a Republican majority into a 13-member Court with a Democratic majority, a Republican Congress could add any number of seats to the Court if they have the votes to do so — and that new majority might be even more hostile to democracy than the current crop of justices.
Ways to change the makeup of the Supreme Court without giving a clear advantage to one party
Assuming that the next Congress does not have the votes to simply add new seats to the Supreme Court and let a Democratic president fill them, Congress still has several options that could change the makeup of the Court in ways that are less overtly partisan.
2) A “balanced” Court
One of the leading alternatives to simply adding and filling new seats on the Court with Democratic judges is still a form of court-packing. But the aim is to create a politically balanced Court where neither party dominates.
In a 2019 paper, law professors Dan Epps and Ganesh Sitaraman proposed a 15-justice Court made up of five Democrats, five Republicans, and five justices chosen by the other 10. The idea behind this proposal, which now-Secretary of Transportation Pete Buttigieg featured during his bid for the 2020 Democratic presidential nomination, is that the balance of power on the Supreme Court would be held by moderate judges acceptable to both political parties.
There are a number of concerns about this proposal. One is that it is likely to be declared unconstitutional. The Constitution gives the president the power to appoint new justices; it does not give that power to a panel of 10 other justices.
A more fundamental problem is that any attempt at court-packing, even an attempt that installs a centrist Supreme Court, is likely to enrage Republicans and invite retaliation if Republicans regain control of the government. And there’s no guarantee that a centrist Court will overrule the Roberts Court’s previous decisions undercutting voting rights. Democrats could wind up triggering all the downsides of packing the Court without gaining the benefits of a more democratic system.
But if there was ever enough energy to make a 13-justice Court with a Democratic supermajority a real possibility, perhaps Republicans will be willing to negotiate a compromise — the kind of compromise that could be written into a constitutional amendment if both parties agree to it. And a balanced Court proposal similar to the one offered by Epps and Sitaraman could potentially be that compromise.
3) The “Supreme Court lottery”
A separate proposal from Epps and Sitaraman would transform the Supreme Court from a permanent panel of nine justices to an ever-changing panel of judges. These judges would briefly rotate onto the Supreme Court before returning to their regular job on a federal appeals court.
The basic idea is that each of the approximately 170 active federal appeals court judges would be appointed as associate justices of the Supreme Court. Then, every two weeks, nine of these judges would be randomly selected to serve on the nation’s highest Court. After two more weeks, a different panel of nine would be selected. (In this system, the current justices could also be eligible to rotate onto a temporary panel of nine, but they would no longer sit permanently on that panel.)
It may seem random, but this is more or less how federal appeals courts already operate. Most appeals court cases are heard by randomly selected panels of three judges, although a larger panel consisting of all the active judges on the court will occasionally hear exceptional cases.
One problem with this proposed lottery system from a Democratic (and democratic) perspective is that the rotating Supreme Court panel would, at least in the short term, more often than not be controlled by Republicans who may share the current Court’s hostility toward voting rights. There are currently 172 active appeals court judges in the United States, and 92 of them were appointed by a Republican president, although Democratic appointees could control a majority of these judgeships by the end of Biden’s current term, if Democrats retain a Senate majority that will confirm Biden’s nominees.
Another risk is that a panel of anti-democratic radicals will be randomly chosen to hear a crucial voting rights case — or that such a panel will resolve a disputed election. Suppose, for example, that a “Supreme panel” that happened to be sitting when Donald Trump sought to overturn the 2020 election included judges like Neomi Rao, Andy Oldham, Edith Jones, Kurt Engelhardt, and Clarence Thomas — all of whom are known for taking extraordinary liberties with the law to advance conservative causes. That panel may very well have handed Trump the presidency.
In the long term, however, a rotating Supreme Court could, in Epps and Sitaraman’s words, “depoliticize the appointments process by making confirmations more numerous and less consequential.” And it would mean that individual justices “would no longer have the ability to shape constitutional law for a generation by strategically timing their retirement” so that their seat is filled by a president of their same party.
4) Term limits
Another way to prevent justices from “strategically timing their retirement” is term limits.
The leading term limits proposal, which has at times enjoyed support from prominent Democrats and Republicans, would require each justice to step down after 18 years. Terms would be staggered so that a justice steps down every two years, meaning that two justices would be replaced during each presidential term, although whoever is president when this proposal is implemented might get to replace more justices depending on how Congress decided to manage the transition to the new system.
If such a proposal had been implemented on the first day of a Biden presidency, Biden might have immediately gotten to replace Justices Clarence Thomas and Stephen Breyer, both of whom have served more than 18 years. The next justice in line to leave the Court would be Chief Justice John Roberts.
It is far from clear, however, that term limits may be imposed on a sitting justice. The Constitution provides that federal judges “shall hold their offices during good behaviour,” and the particular “office” held by each of the current justices is a seat on the Supreme Court for life. (Future justices could probably be term-limited, on the theory that they are being confirmed to a different “office” that only allows them to sit on the nation’s highest Court for 18 years before they are rotated onto a lower court.)
Moreover, even if there is a constitutional way to impose term limits on sitting justices — Yale Law School’s Jack Balkin has a clever proposal to achieve this goal — the question of whether sitting members of the Supreme Court can be subjected to term limits would be decided by, well, the Supreme Court. And it’s unlikely that a majority of sitting justices would willingly agree to term limits.
Ways to weaken the Supreme Court
As an alternative to changing the personnel on the Supreme Court — or, perhaps, in addition to changing the personnel of the Court — Congress might also enact several reforms that seek to diminish the Supreme Court’s nearly unchecked power to hand down binding interpretations of the Constitution.
The president may also be able to diminish the Court’s authority by refusing to enforce particularly egregious Supreme Court decisions.
5) Jurisdiction stripping
The Constitution gives the Supreme Court power to hear most federal cases on appeal from a lower court, but it may only assert jurisdiction over cases “with such exceptions, and under such regulations as the Congress shall make.” Accordingly, Congress has at least some power to tell the Supreme Court that it is not allowed to hear certain cases.
It’s not clear how much power Congress has to limit the Court’s power to hear particular cases. Congress has unlimited power to restrict the jurisdiction of lower federal courts, a power that a Democratic Congress could use to prevent Trump-appointed trial judges from blocking new progressive laws as soon as those laws are enacted. But the Supreme Court’s decisions concerning Congress’s power to limit the high court’s jurisdiction are not a model of clarity.
In Ex parte McCardle (1868), the Supreme Court held that it did not have jurisdiction over a case, brought by a newspaper publisher who claimed that he was wrongly jailed for publishing attacks on Reconstruction, because Congress enacted a law stripping the Court of jurisdiction to hear this case.
McCardle, however, is a very old case. And the opinion in that case does not explain the Court’s reasoning in much detail. In the years since McCardle, many scholars and at least some justices have argued that Congress’s power to limit the Court’s jurisdiction is not unlimited. Concurring in Felker v. Turpin (1996), for example, Justice David Souter suggested that Congress may only be able to prevent the Court from hearing a particular case if there is some other way that the issue presented by that case could reach the justices.
In any event, there are two closely related problems with this tactic — known as “jurisdiction stripping” — as a solution to a partisan Supreme Court. The first is that the question of whether Congress has the power to enact a particular jurisdiction-stripping law will be decided by the Court itself, so the justices may simply strike down an act of Congress that seeks to limit the Court’s jurisdiction.
The other problem is that most federal statutes do not enforce themselves; they need to be applied to individual parties through court orders. Congress might be able to prevent the Supreme Court from striking down the Voting Rights Act, for example, by stripping the Court of jurisdiction to hear voting rights cases. But if voting rights plaintiffs cannot obtain a court order enforcing the Voting Rights Act, then that law ceases to function.
Similarly, jurisdiction stripping would not allow Congress to restore a constitutional right to an abortion. Indeed, if Congress passed a law stripping federal courts of the power to hear abortion cases, that would strip them of their authority to hear a case seeking to reinstate Roe v. Wade.
But jurisdiction stripping could prevent a rogue Court from creating new “rights” — think of early 20th-century decisions inventing a right to pay workers less than the minimum wage, or a right to employ a non-unionized workforce — that implement conservative policy preferences from the bench.
6) Supermajority voting requirements
In a 2021 law review article, law professors Ryan Doerfler and Samuel Moyn propose that Congress could require a supermajority of justices to vote to strike down federal laws. This proposal could potentially be implemented in two different ways: Congress could either impose a universal rule requiring a 7-2 majority on the Supreme Court to strike down a federal law or identify particular laws, such as the Voting Rights Act, which can only be struck down by a supermajority.
Such a law would need to be coupled with provisions stripping the lower courts of the power to strike down such laws, or else judges on the lower courts could potentially block laws that the Supreme Court would be unable to strike down with a bare majority vote.
A supermajority requirement, Doerfler and Moyn argue, “would functionally reallocate decision-making authority to the democratically legitimate branches of government in cases in which a countermajoritarian faction on the Court enjoys only a simple majority.” In effect, the Court’s conservatives would have to convince at least one Democratic appointee to strike down a federal law if Congress imposed a 7-2 supermajority requirement.
This proposal, however, is vulnerable to one of the same problems facing jurisdiction stripping. What happens if a 5-4 Supreme Court strikes down the law imposing a 7-2 supermajority requirement? The result could be a constitutional crisis, as Congress and the Supreme Court would be fundamentally at odds regarding whether particular laws are constitutional, and there would be no clear way to resolve this dispute under the Constitution.
Another problem is that the Supreme Court does not need to declare a federal law unconstitutional in order to sabotage it. If Congress requires a supermajority to strike down the Voting Rights Act, for example, the Court could still interpret the individual provisions of this law so narrowly that they would do very little to protect voting rights.
7) Presidential (or congressional) resistance to the Supreme Court
Abraham Lincoln began his presidency with a broadside against the Supreme Court. Reacting to the Supreme Court’s pro-slavery decision in Dred Scott v. Sandford (1856), Lincoln attacked the very idea that the justices should have the final say on constitutional matters in his first inaugural address:
[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Though Lincoln conceded that Dred Scott was binding upon the particular parties to that litigation, he rejected the idea that the president or Congress is bound by the Court’s understanding of the Constitution. The Lincoln administration issued a passport to a Black man, defying Dred Scott’s holding that Black people cannot be citizens. And Lincoln signed legislation banning slavery in the territories, defying Dred Scott’s conclusion that slaves remained slaves even after entering a free territory.
A similar drama nearly played out in the Franklin Roosevelt administration. During Roosevelt’s first term, many contracts contained “gold clauses” requiring debtors to pay back creditors in gold dollars valued at the time the contract was made. Because of rampant deflation due to the Great Depression, these contracts effectively increased the amount of debt owed under these contracts by as much as 69 percent.
Among other things, these gold clauses drove up the returns railroads owed on their bonds so high that they could have bankrupted most of the railroad industry, potentially shutting down much of the nation’s shipping in the process. And the clauses threatened to ruin homeowners who suddenly owed the equivalent of $1.69 for every dollar they borrowed to buy their house.
Congress declared these gold clauses null and void. But Roosevelt, fearing that the Supreme Court would reinstate the clauses, prepared a speech announcing that he would not obey such a decision. “To stand idly by and to permit the decision of the Supreme Court to be carried through to its logical, inescapable conclusion,” Roosevelt would have said in a speech the Court never forced him to deliver, “would so imperil the economic and political security of this nation that the legislative and executive officers of the Government must look beyond the narrow letter of contractual obligations.”
The theory that each branch of government may decide on its own how to interpret the Constitution, even in defiance of the Supreme Court, is known as “departmentalism.” Under this theory, a president potentially has significant (although not entirely unlimited) power to undermine the judiciary’s determination that a particular law is unconstitutional.
Suppose, for example, that the Court strikes down the Affordable Care Act. A Democratic president could order the US marshals not to enforce this decision. They could order the Treasury to continue to provide subsidies to states and individuals entitled to receive them under Obamacare. And the president could routinely pardon executive branch officials who continue to make these payments, neutralizing a federal law that plausibly could subject these officials to prosecution in a future administration.
Departmentalism would not allow the president to completely neutralize such a Court decision. Lower federal courts would remain bound by the Supreme Court’s decision, so the president would not be able to obtain a court order against states or private insurers who violate their obligations under Obamacare.
Similarly, departmentalism probably could not be used to restore lost abortion rights, because state abortion bans are enforced by state law enforcement officers and not by anyone who answers to the president. But departmentalism would, at the very least, allow the president to mitigate the harm created by a decision that would otherwise strip health coverage from tens of millions of Americans.
8) State resistance to the Supreme Court
Just as the executive or legislative branch might resist a Supreme Court decision through departmentalism, states might invoke a theory known as “interposition” to defy a court order.
The history of interposition, which posits that a state may “interpose” its authority between the Supreme Court and its citizens, is not a happy one. In the wake of the Supreme Court’s desegregation decision in Brown v. Board of Education (1954) Southern segregationists relied on interposition to justify defying Brown. Martin Luther King Jr. called out segregationist Alabama Gov. George Wallace, in King’s “I Have a Dream” speech, for “having his lips dripping with the words of ‘interposition’ and ‘nullification.’”
Yet there are constitutional systems where something similar to interposition exists without this same tainted history. Canada’s Charter of Rights and Freedoms, for example, contains a provision known as the “notwithstanding clause,” which allows either the national parliament or a provincial legislature to declare that at least some laws shall operate “notwithstanding” a court decision declaring that the law violates Canada’s charter. These overrides, however, automatically expire after five years if they are not renewed.
In the US system, if a state defies a Supreme Court order, the executive branch may use force to enforce that order — think of President Dwight Eisenhower ordering the Army to enforce a desegregation order in Little Rock, Arkansas.
But, as Alexander Hamilton wrote in the Federalist Papers, the judiciary “has no influence over either the sword or the purse” and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” If the Supreme Court hands down a decision that a state government deems abhorrent, the Court cannot enforce that order if the president decides it should not be enforced.
Ways to override Supreme Court decisions
As Congress has grown more and more dysfunctional, the Supreme Court has gained a nearly unchecked power to determine the meaning of federal laws. Though Congress lacks the power to overrule a Supreme Court decision interpreting the Constitution, Congress may amend a federal statute if it disagrees with the Court’s reading of that statute.
Yet Congress uses this power far less than it used to, according to a 2012 study by University of California Irvine law professor Rick Hasen. Hasen found that between 1975 and 1990, Congress enacted “an average of twelve overrides of Supreme Court cases in each two-year Congressional term.” Between 2001 and 2012, by contrast, the number of overrides dwindled to a mere 2.8 per two-year term. (Hasen defines the term “override” to include acts of Congress that “overturned, reversed, or modified a Supreme Court statutory interpretation holding.”)
But there’s no reason Congress — especially a filibuster-free Congress controlled by a single party — must continue to defer to the Supreme Court.
9) Omnibus legislation overruling past Supreme Court decisions
One model that Congress could follow is the Civil Rights Act of 1991, a bill signed by President George H.W. Bush back when it was still possible to achieve a bipartisan consensus against discrimination.
In its 1988 term, the Supreme Court handed down five decisions that, in the words of one scholar, “substantially eroded Title VII of the Civil Rights Act of 1964,” which prohibits many forms of employment discrimination. Congress enacted the 1991 civil rights bill to overrule, or, in some cases, modify those five decisions.
Similarly, Congress could enact a Civil Rights Act of 2023 that overrides several Supreme Court decisions at once.
This bill could include, for example, provisions tossing out the Supreme Court’s entire forced arbitration jurisprudence, which allows companies to force their workers and customers into a privatized justice system that favors corporate parties. It could overrule decisions weakening the Voting Rights Act. It could also override less famous decisions such as Vance v. Ball State University (2013), which made it much harder for workers who are sexually harassed by their boss to sue their employer; or Gross v. FBL Financial Services (2009), which weakened protections against age discrimination.
Such an omnibus bill would serve two purposes. It would get rid of Court decisions that weakened laws intended to protect our democracy and halt practices such as discrimination, and it would send a clear message to the justices that there’s a new sheriff in town who is keeping a close eye on them.
10) Expedite legislation seeking to overrule Supreme Court decisions
The Congressional Review Act (CRA) lays out an expedited process that Congress can use to swiftly overrule regulatory decisions by the executive branch. A bill overruling a federal regulation through the CRA still must pass both houses of Congress and be signed by the president, but the CRA’s streamlined process makes it relatively easy for lawmakers who oppose a particular regulation to override it quickly.
In an essay published in the Atlantic, Sitaraman suggests enacting similar legislation allowing Congress to swiftly overrule Supreme Court decisions:
If the Court issued a decision interpreting a statute or regulation, Congress would have 30 days to vote on whether to open a reconsideration process. If Congress voted yes, the speaker of the House, the Senate majority leader, and the minority leaders would appoint a special committee in each chamber (with proportional party membership) to design a legislative fix for the full body to vote on within the next 30 calendar days. The bill would then go to the other house, where it would be voted on within 10 days through a privileged, fast-track process, which would avoid common legislative snags like the filibuster and committee hearings. The president would then sign the law or veto it, as with any ordinary piece of legislation.
Such legislation could create a normalized process whereby Congress routinely reviews the Supreme Court’s decisions and corrects decisions that read federal laws in damaging or implausible ways. It would also act as a complement to an omnibus bill in the vein of the Civil Rights Act of 1991. The omnibus would take care of past decisions that misread federal law, while the review act would prevent new decisions from having much effect.
Democrats will not have much time to decide how to deal with the Supreme Court
Setting aside the more detailed proposals described above, Congress has a great deal of power to restrict a Supreme Court that seems determined to undermine democracy.
In its 2020 budget request, for example, the Supreme Court requested $106.8 million in funding from Congress. Congress could have, if it wanted, drastically reduced these funds (though the Constitution does not permit Congress to reduce a sitting justice’s salary and benefits).
Similarly, Congress could also impose onerous new duties on the justices. For most of the nation’s history until 1911, Supreme Court justices had to spend at least some of their time “riding circuit” — traveling to various parts of the country to hear ordinary federal cases. Congress could revive this practice. Or it could expand the Court’s (currently very limited) mandatory jurisdiction, forcing it to hear thousands of routine cases involving uncontroversial legal issues.
The point isn’t that Congress necessarily should strip the Court of its staff, order the justices to spend half their year flying around to random federal courthouses, or drown them in an ocean of routine appeals. Rather, it’s that Congress has tremendous power to fight back against an anti-democratic Supreme Court.
Realistically, however, if Congress wants to prevent the Supreme Court from entrenching its power to veto federal laws and manipulate voting rights, it’s likely to only have a short window in which to do so. Indeed, that window could already be closing. If there is one lesson from the past two decades, it is that full Democratic control of the elected branches does not happen very often — and even when it does happen, a Democratic majority can be held hostage by its most conservative members.
Supreme Court justices, by contrast, serve for life. They can afford to bide their time, waiting until their party controls at least one house of Congress or the White House to hand down decisions that could entrench that party in power for a very long time.
Author: Ian Millhiser
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