Reconsidering the Supreme Court in Partisan America Posted on Thursday, December 20, 2018

Is it Possible to Balance the Supreme Court’s Conservative Tilt through the Political Process?

Erin Mayo-Adam Assistant Professor, Political Science Department and Human Rights Program, Hunter College, CUNY

With the confirmation of Brett Kavanaugh, the United States Supreme Court has taken a decidedly conservative turn. We can expect the Court to continue to chip away at the Voting Rights Act, LGBTQ rights, reproductive justice, labor unions, and immigrant rights. Indeed, it is likely that the new Court will either overturn or severely curtail Roe v. Wade, the famous 1970s decision that overturned state bans on abortion. Many of these issues are core human rights and are broadly popular among the American public. Given the possibility that a Court led by far-right justices will overturn long-standing precedents and interpret the Constitution in ways that hamper the realization of popularly supported human rights, is there anything that can be done to limit the Court?

The answer is yes, there is much that can be done, but only if the popular support for core rights is reflected in the make-up of Congress and the Executive Branch. This may be a difficult scenario to imagine today given the anti-majoritarian features of American democracy, like the United States Senate, which grants equal representation to each state in Congress regardless of population. We live in a governmental system where rural and white voters, many of whom oppose the federalization of human rights, play an outsize role in deciding how the country should be run. However, should popular majorities win support in the federal government, the political branches have some ability, according to the U.S. Constitution, to limit the Court.

Article III of the Constitution includes an “Exceptions Clause,” which grants Congress the authority to determine the Court’s jurisdiction, or authority to hear certain appellate cases. Most contemporary threats to strip the Court of jurisdiction are nothing more than political posturing. For example, in 2004, before the nationalization of same-sex marriage, a Republican-controlled House of Representatives voted to eliminate the Supreme Court’s ability to hear cases that could force states to recognize same-sex marriages accepted in other states. The bill never made it through the Senate and was widely regarded as a political stunt meant to build support among the Republican base at the time.

However, Congress has, occasionally voted to strip the Court of its jurisdiction over politically contentious issues in the relatively recent past. In 2005, the New York Times revealed in an exposé that the George H.W. Bush administration was spying on telephone calls and emails with the assistance of telecommunications companies like AT&T and Verizon without a warrant, as required by the 4th Amendment’s prohibition against unreasonable searches and seizures. In order to prevent a lawsuit from going forward, Congress granted retroactive immunity to any companies that had cooperated with U.S. intelligence agencies. This move effectively stripped the courts of the ability to hear cases that emerged that challenged the constitutionality of the companies’ actions.

In addition to jurisdiction stripping, Article III of the Constitution also gives Congress the authority to create the federal court system and determine the number of justices on the Supreme Court. This section of the Constitution grants Congress the ability to set the number of justices on the Court and, potentially, pack the Supreme Court with justices who will advance popularly supported human rights. “Court Packing” has been threatened in the past. During the Franklin D. Roosevelt administration, the Supreme Court initially declared some of the president’s core New Deal Programs unconstitutional, such as the National Industrial Recovery Act, which sought to regulate companies with the goal of stabilizing the economy during the Great Depression. In response to the Court’s ruling, President Roosevelt threatened to “pack the Court” with justices who would support his New Deal policies. The Senate Judiciary ultimately rejected Roosevelt’s proposal, arguing that it violated the principle of separation of powers enshrined in the Constitution. Despite this, many still believed the President’s court packing plan would be adopted. After President Roosevelt won a landslide election in 1936, in a “switch in time that saved 9” some of the justices changed their minds and the Court started upholding Roosevelt’s New Deal policies.

Today, Congress could always to pack the Court in response to politically unpopular decisions. Although the move would certainly be met with constitutional challenges, the text of the Constitution, which grants Congress authority to set the number of justices on the Court and create and limit the federal Court system, provides a compelling rationale for the constitutionality of a Court packing plan. Furthermore, in recent history, Republicans have successfully packed and manipulated the make-up of some state Supreme Courts. For instance, in 2015, Arizona Republicans, who control all three branches of the government in the state, increased the number of justices on the state’s Supreme Court from 5 to 7. Republicans in Georgia pulled off a similar court packing plan at nearly the same time. Both state court packing plans serve as a good model for a potential court packing proposal at the federal level.

Finally, Congress could initiate the constitutional amendment process and institute reforms to the Supreme Court’s appointment and confirmation process. For instance, some political scientists like Lori Ringhand and Paul Collins have argued for replacing judicial lifetime appointments with 18-year terms, with the hope of creating a less politically fraught appointment process and a Court made-up of justices whose views of the Constitution more closely track with popular majorities. Unfortunately, this mechanism of limiting the Court is the least likely to succeed because the constitutional amendment process requires two-thirds of Congress and three-fourths of the states to agree on a proposal. Given that the current Court’s conservative majority – the clearest conservative majority since the Great Depression – is supported by Republicans in Congress and in a number of states, the success of a constitutional amendment that would alter the Court seems unlikely. Such an amendment would require both popular and bipartisan support.

Nevertheless, a court packing plan or a plan to limit the Court’s jurisdiction are more viable options for limiting Court power because the Constitution allows each of these limits to be instituted by congressional majorities rather than supermajorities. However, only time will tell whether there is enough grassroots mobilization for the formation of a new Congress that supports and is willing to act to protect popular human rights in the face of court losses. The recent Democratic House victory may be a step towards that goal.

Erin Mayo-Adam is an assistant professor in the Political Science Department and the Human Rights Program at Hunter College, CUNY. Her research projects contribute to research in law and social movements, gender and sexuality, immigration, and labor politics. Her current book project focuses on the problem of building alliances across and within rights-based minority movements to aid in struggles to overcome inequality and oppression at the grassroots level. The book examines the extent to which groups bridged divisions in LGBTQ, labor, and immigrant rights movements through the development of coalitions that could aid in struggles for rights. The dissertation upon which this project is based won the American Political Science Association best dissertation award in sexuality and politics in 2018. Professor Mayo-Adam has published journal articles based on her research in Law & Society ReviewLaw & Social Inquiry, and Studies in Law, Politics, and Society.

The writing and opinions expressed herein are those of the authors and do not necessarily reflect the positions of the Roosevelt House Public Policy Institute or Hunter College.