The death of Ruth Bader Ginsburg on September 18 underlined a peculiar aspect of the American political system: The state of laws governing everything from abortion to environmental regulation to health care to national security depends, in part, on when exactly elderly judges happen to die.
That not only fosters a ghoulish preoccupation with the health of Supreme Court justices, and puts justices like Ginsburg in a position where they have to dictate their wishes for their seat from their deathbed — it also raises major questions about whether a group of nine unelected jurists, appointed for life, has too much power over law and policy in the United States.
This worry, that the courts have gotten too powerful relative to other branches, has a long history, among conservatives repulsed by decisions affirming rights to abortion and birth control, as well as among liberals and leftists who argue that courts capable of overruling Congress and state legislatures undermine democracy.
Two law professors, Ryan Doerfler of the University of Chicago and Samuel Moyn of Yale, recently released a paper laying out a way to “democratize” the Supreme Court by weakening its ability to strike down federal laws as unconstitutional (an ability usually referred to as “judicial review”). In order to pass transformative progressive legislation like Medicare-for-all or a Green New Deal and ensure the Court does not tamper with them, Doerfler and Moyn propose either stripping the Court of jurisdiction over certain legislation or imposing a supermajority requirement under which a 7-2 majority would be required for the Court to overturn acts of Congress.
Doerfler and I discussed the paper last week, what their proposals would mean for the Court, why liberals and leftists shouldn’t fear losing judicial review, and why we can’t count on courts to protect democracy. A transcript, edited for length and clarity, follows.
Let’s start with the very basics: What is “judicial review”?
When people use the term “judicial review,” usually what people are referring to is the judicial evaluation of either legislation or executive activity for conformity with the Constitution. Because the Constitution has legal priority over legislation and executive actions, courts in the US will decline to enforce either if the Constitution conflicts with them.
A whole lot of judicial activity is not judicial review, including, for example, review of executive actions for conformity with statutes when making regulations.
The US has a fairly strong practice of judicial review. How unusual is that internationally, especially compared to what we think of as peer countries in Western Europe, Canada, Japan, Australia, and New Zealand?
I should say I’m very much not a comparativist, but American-style judicial review, where judicial assessments of constitutionality are binding on all of their branches, has traditionally been understood as a global outlier.
Now, since the mid-20th century, that has become less and less true. Still, even today, we see a huge range of practices. There are systems that go entirely without judicial review, like the Netherlands or Switzerland, where federal legislation, at least, is entirely exempt from review. We also have systems like Canada or Israel, where the legislation is subject to judicial review, but legislators reserve the right to override judicial determinations. And then to the other end of the spectrum, we have systems like we have here in the US.
Interestingly, US states also employ different systems with respect to state constitutions. North Dakota and Nebraska require supermajorities for their high courts to declare state statutes inconsistent with the state constitution.
Let’s dig into your actual proposals. The first is a supermajority rule, where the Supreme Court would need seven votes, not just five, to overturn federal legislation. How would that work?
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.
To close out the scheme, Congress would probably want to add a couple of additional features. Congress would likely want to establish an analogous requirement for lower courts — for example, a requirement that federal courts of appeal can declare federal legislation unconstitutional only by unanimous 3-0 vote.
Even more importantly, [they could also pass] legislation providing that any relief provided by lower federal courts on constitutional grounds would terminate upon Supreme Court review, even in the event that the justices are ultimately unable to rule on a statute’s constitutionality. For example, if the justices voted 5-4 that a statute was unconstitutional, under the supermajority rule, the court couldn’t declare the statute unconstitutional. And in that event, any relief [that is, rulings stating the statute was unconstitutional] provided by lower courts would terminate. That limitation on relief is to prevent disuniformity among lower courts in those sorts of 5-4 cases.
You also propose using the power of Congress to circumscribe certain topics from judicial review. Is there any precedent for that? What kind of bills are you imagining making SCOTUS-proof? And would the Supreme Court really accept legislation limiting its jurisdiction, or just rule it unconstitutional?
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.
Congress has — not with tremendous frequency but certainly over the course of history — enacted jurisdiction-stripping legislation. Historically, courts have gone to great lengths to interpret those statutes narrowly, and the constitutionality of that legislation is a hot topic of debate among professors who study federal courts, largely because there’s just not a ton of judicial precedent on it.
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. Whether we’re talking about jurisdiction stripping or a supermajority requirement or some other type of reform, our goal is to channel as many policy decisions as possible away from the democratically unaccountable judiciary back to the political branches.
I should say that I’m also something of a judicial review skeptic, and when I make this argument to friends on the left, the usual rebuttal, which is very fair, is to go down a litany of decisions from Brown v. Board of Education (striking down school segregation) to Loving v. Virginia (legalizing interracial marriage) to Roe v. Wade (legalizing abortion) to Obergefell v. Hodges (legalizing same-sex marriage). Those are all cases where the Court struck down some legislation or policy that was suppressing some minority group, or impinging upon what many believe to be a fundamental right.
I’m curious how you weigh the downsides, for progressives, of losing those decisions against the upside of losing decisions that went the other way. I’m also curious if that’s even the right way to think about judicial review.
That’s exactly the question that I think we need to address from the left in particular.
First, this might seem a little convenient, but my first response is to say our proposal deals with federal legislation in particular. Review of executive action is more complicated, as is review of state law, for reasons having to do with federal supremacy. So with Brown or Roe, for example, [our proposal] may not even affect that [because those cases didn’t originate with challenges to federal legislation].
But setting those qualifications aside — for universally accepted precedents, like Brown, for example, a supermajority requirement is going to have no bearing. If a litigant were today to argue that Brown was wrongly decided, she would lose 0-9. Even under a supermajority rule, Brown would remain the law of the land.
Second, with other more contentious precedents, one has to look at what judicial enforcement has actually provided, right? Take Roe, for example. What Roe as applied has actually afforded us are incredibly paltry abortion protections, especially for economically disadvantaged women. And at what cost? What’s the downside of operating under this regime?
So in part, our position is, “Look, for every Roe or Obergefell, we get a Citizens United [striking down restrictions on corporate political spending] or Shelby County [striking down part of the Voting Rights Act], let alone decisions like Lochner [striking down a state law limiting workdays to 10 hours] or Dred Scott [ruling Black Americans could not be citizens].” And our claim is that progressives have over the long run fared terribly under a system of judicial supremacy.
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.
Those are some instrumental reasons why I think progressives should prefer a system with less, rather than more, judicial intervention. There are more principled reasons as well. If the only way that progressives can achieve their policy goals is through an anti-democratic institution, rather than through popular majorities, that should be concerning, just as a matter of principle. Now, I don’t think that’s true. I think that progressives should be more confident in the popularity, or at least the potential popularity, of their policies with the broader population. But insofar as we’re relying on judicial elites to tell popular majorities what they should think? I think that should also trouble progressives.
The most persuasive defense of judicial review, to my mind, is what law professors sometimes call the “political process theory” approach. To simplify dramatically, on this view you concede the point that high-stakes political decisions should be made by democratically accountable legislators, not by the courts.
But a prerequisite for democratically accountable legislators making these decisions is that they’re actually democratically accountable, and they have strong incentives to make themselves less accountable through measures like gerrymandering or voting restrictions or, in extreme cases, vast constitutional changes like the ones the Fidesz party in Hungary has enacted to entrench its autocratic regime. So you need a Supreme Court with the ability to overturn legislation that threatens the democratic nature of our legislatures themselves.
Is the supermajority court you’re imagining able to push back challenges like this, given that there weren’t even five votes on the Supreme Court to overturn large-scale gerrymandering in North Carolina and Maryland?
That’s a great place to start, right? There wasn’t a supermajority; there wasn’t even a majority. I think that that’s part of the response.
This is the John Hart Ely approach to justifying judicial review: The role of the Court is not to enforce substantive values, but rather to police the democratic process to make sure that we exercise our democratic capacities well.
The first response is sort of glib, but I think it rings true, which is: nice in theory, but it fails in practice. [Harvard law professor] Michael Klarman just authored a book-length foreword to the Harvard Law Review’s Supreme Court issue detailing the Supreme Court’s contribution to what he calls “the degradation of our democracy.” The Roberts Court in particular has been horrendous on this front with decisions like Shelby County. The justices, like the rest of us, are ideological actors, and they’re disposed to help their ideological compatriots where they can, even in cases where it seems more plausible that the Court would intervene, like partisan gerrymandering. Time and again, it’s just declined to do so.
So then what’s our recourse? Sadly, I think probably the recourse is to press ahead through the bad democratic system that we have, to make it a better one. Maybe that’s unsatisfying, but I think that’s just the situation we’re in right? There is no deus ex machina that’s going to come in and save our democracy. We just have to do it ourselves. We have to enact statutes like HR 1, for instance, which would make our system meaningfully more democratic. And then if we protect HR 1 from judicial invalidation — that’s a good thing. Then we’ve made progress on the democratic front.
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