Erin Schaff/The New York Times via AP
In the end, the problem isn’t that judges are too liberal or too conservative. It’s that judges are simply too powerful.
Last week, we learned that Justice Amy Coney Barrett, whom the GOP put on the Supreme Court in the dying days of Trump’s presidency, will be paid a $2 million advance for a book about how judges are not supposed to bring their personal feelings into how they rule. Set aside for a moment the unseemliness of Barrett so rapidly cashing in on her new position. More important is the signal Barrett’s book deal sends about the Supreme Court. If it weren’t for the Court’s extraordinary power—to create rights, and, as Roe v. Wade and the right to legal abortion hang in the balance, to take them away—no publisher would pay that kind of money for a novice judge’s opinions.
All of which should lead us to ask why nine unelected judges are given the power to make so many important decisions in the first place. Most Americans perceive the Court as an integral part of our democracy. But in reality, the relationship of judges to democracy is more complicated, and at times, antagonistic.
By enforcing constitutional rules, judicial review helps to smooth out democracy’s rough edges. But when they overturn democratically enacted laws, judges also shrink our capacity to make decisions for ourselves. And if judges overdo it, judicial review can preempt necessary democratic development. At the extreme, instead of making democratic life more decent and predictable, interventionist courts can spark long-lasting and intense conflict.
When they overturn democratically enacted laws, judges shrink our capacity to make decisions for ourselves.
That’s what happened in 1857 when the Supreme Court stepped in to stop Congress from prohibiting slavery in U.S. territories. It hoped its decision in the Dred Scott case would lead the nation away from conflict. But if anything, Dred Scott hastened our descent into civil war.
That’s also what happened in 1973 when the Supreme Court stepped in to preempt the democratic debate and declare abortion a right in Roe v. Wade. The backlash from that decision became a defining feature of American politics. The English language itself became a field of battle, with “pro-life” and “pro-choice” sides unable to agree even on nomenclature.
But the deepest threat that judicial review poses for democracy lies ahead of us. Republicans have built their recent political strategy around stocking the federal bench with right-wing partisans. And they’ve done so for a reason: Demographic change is making it increasingly difficult for the GOP to win elections, but a conservative judiciary can stand in the way of much of what Democrats and a majority of Americans hope to accomplish. The conservative Supreme Court would likely intervene, for example, to limit attempts to address global warming, to expand health care, to enforce rational public-health laws, or to tax the very wealthy. In all these cases, the Supreme Court would not be enforcing any clear text in the Constitution. It would be exercising raw power.
For any committed small-d democrat, this sort of politicized judging is unacceptable. And opposition is starting to build: We’ve seen a slew of recent court reform proposals, including judicial term limits, Supreme Court supermajority voting requirements, and, perhaps most prominently, court-packing.
In the end, though, none of these get to the heart of the problem, which isn’t that judges are too liberal or too conservative. It’s that judges are simply too powerful.
We need a deeper reform, one that the Constitution specifically authorizes. Article III of the Constitution gives Congress the power to strip federal courts’ jurisdiction: a power that can be employed to rein in politicized courts and even to override judges when they stand in the way of change that a substantial and enduring political majority wants.
How would jurisdiction-stripping work? Article III, Section 1 gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, Section 2, Clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose within approximately 99 percent of the Supreme Court’s total docket what cases the Court has the power to hear.
So, imagine Congress passes the John Lewis Voting Rights Act, which would put an end to a looming wave of GOP-sponsored voter suppression laws. Given the Supreme Court’s hostility to voting rights (demonstrated in cases like 2013’s Shelby County v. Holder, where a 5-4 majority of the Court struck down provisions of the 1965 Voting Rights Act), Congress would be well-advised to include in its new legislation language stripping the federal courts’ authority to review it. In so doing, Congress would be advancing its own understanding of its power to guarantee the voting rights of all Americans—and telling courts to stay out. If voters disagree, either with the federal government’s interference in states’ decisions about election rules, or with Congress’s decision to limit judicial review, they can discipline Congress in the next election.
Crucially, Congress’s power to rein in the courts through jurisdiction-stripping isn’t partisan: It can be used by Republicans as well as by Democrats. In the end, the jurisdiction-stripping strategy isn’t about which side wins in any particular political struggle—although
The Wall Street Journal editorial page, characteristically, has given the basest partisan spin to the idea by recommending that Republicans use it as revenge if Democrats pack the Supreme Court. The legitimate use of jurisdiction-stripping, by contrast, would be a way to strike a better balance between judicial review and democracy. Which would return us to a saner world where Amy Coney Barrett doesn’t wield the kind of unreviewable judicial power that gets her a $2 million book deal.
