A pair of progressive law professors from Harvard and Yale have written an article arguing that it’s time to replace the current Supreme Court with something more palatable to left-wing professors.
In Donald Trump’s second term, the supreme court’s conservative supermajority has seized the opportunity to empower the nation’s chief executive. In response, public approval of the court has collapsed. The question is what it means for liberals to catch up to this new reality of a court that willingly tanks its own legitimacy. Eager to realize cherished goals of assigning power to the president and arrogating as much for itself, the conservative justices seemingly no longer care what the public or the legal community think of the court’s actions. Too often, though, liberals are responding with nostalgia for a court that cares about its high standing. There is a much better option: to grasp the opportunity to set right the supreme court’s role in US democracy.
As they see it, everything the court’s majority does is destructive.
Most recently, the court hinted at its plan to declare most, if not all “independent” agencies unconstitutional, allowing Trump to fire members of the Federal Trade Commission and the National Labor Relations Board – though Chief Justice Roberts did suggest that the Federal Reserve might be different, drawing sighs from legal commentators (and sighs of relief from investors). The conservative justices appear wholly unbothered by the howls that the court is no more than a partisan institution, turning their destructive attention next to what remains of the Voting Rights Act.
And the only Justice they are happy with is, of course, Justice Jackson.
Encouragingly, Jackson pivoted to “warning the public that the boat is sinking” – as journalist Jodi Kantor put it in a much-noticed reported piece. Jackson’s fellow liberals, though, did not follow her in this regard, worrying her strategy of pulling the “fire alarm” was “diluting” their collective “impact”…
Some liberals worry that concluding the supreme court is beyond redemption is too close to “nihilism” about the constitution, or even about law itself.
Some worry, but not these authors. They don’t even bother to justify any of their claims that the court is illegitimate. It’s just taken as a given and therefore attempts to further destroy the court’s reputation aren’t something to avoid but something to embrace. Hence they conclude:
In Trump’s second term, the Republican-appointed majority on the supreme court has brought their institution to the brink of illegitimacy. Far from pulling it back from the edge, our goal has to be to push it off.
Looking back at their previous writings (these same two professors often write articles together) it seems they’ve been making this same argument since at least 2020. The basic thrust ever since has been the same, that with conservatives ascendant, it’s time to strip the Supreme Court of power. Here’s an interview one of the authors gave to Vox in 2020:
The baseline is the Court can, by a simple majority 5-4 vote, declare a federal statute invalid. And then that’s it, under our system of judicial supremacy.
Our basic idea is that Congress could impose a limit on the Supreme Court that says that the Court may only declare a federal statute unconstitutional by, let’s say, a 7-2 majority. Congress could pass a statute that imposes this requirement for federal legislation in general, or just for specific statutes — if Congress were to enact the Green New Deal or HR 1 [the House Democrats’ democracy reform bill], something like that.
Alternatively, Congress could simply declare that certain legislation is not subject to the Supreme Court’s review.
This is a mechanism called “jurisdiction stripping” — Congress just passing a statute prohibiting either the Supreme Court specifically or even lower courts from ruling on the constitutionality of, say, the Green New Deal…
As to which topics Congress should specifically exempt there, we don’t really take a firm position. These are just tools that we’re trying to put on the table for progressives, but I would say our inclination is the more the better…
It’s worse still if we think about the rights that progressives should be concerned about providing: positive, affirmative rights. Take the abortion example. Progressive are concerned with providing an affirmative right for abortion, financed by the state. That sort of protection is only going to be provided by statute, through something like Medicare-for-all with abortion services covered. And there, by lessening the court’s authority to review legislation, we make it more possible for Congress to successfully create such a right without judicial interference.
There’s much more of this (at Vox and elsewhere) but you get the idea. Weakening the Supreme Court is just a means to a partisan end. That end is a Congress which can pass far-left bills without any fear of the pesky Constitution or the courts stopping them. They don’t say it exactly this way but the gist is that the three co-equal branches are really holding progressives back and that’s reason enough to do away with the Supreme Court as we know it.
I don’t think this sort of thing is tremendously impactful on Americans but like a lot of bad ideas that circulate on the left, you never know when it’s going to pop up. We saw this is 2020 when, suddenly, everyone was talking about what a reasonable idea defunding the police was or how white supremacy was just a given in our politics. These ideas had also been percolating on the left for a while and few outside leftist law schools had heard much about them. Then all at once everyone seemed to be on board and police were being defunded around the country (to disastrous effect).
All that to say, it’s good to keep an eye on stuff like this because, given a chance, it could spring from nowhere into the center of the public debate with the help of progressive journalists. We’ve all seen it happen before.
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