Democrats Introduce The Supreme Court Review Act To Rein In Activist Court

The Huffington Post reports, New Bill Would Make It Easier For Congress To Fight Back Against Hard-Right Supreme Court:

Democrats introduced legislation Thursday that would enable a simple majority in Congress to override Supreme Court decisions like those that overturned the right to an abortion and gutted the government’s ability to regulate carbon emissions.

The Supreme Court Review Act would give Congress the authority to quickly respond to Supreme Court rulings that overturn a previously recognized constitutional right, newly interpret or reinterpret a statute, or invalidate a proposed or enacted regulation. Supreme Court Review Act bills would be able to pass the Senate without being subject to the chamber’s 60-vote filibuster threshold.

In this historic term, the court ended nationwide protections for abortion care by overturning Roe v. Wade, weakened the Environmental Protection Agency’s ability to respond to climate change, further gutted state gun control laws, rolled back Miranda rightsfor criminal defendants, and hollowed out precedents supporting the separation of church and state. Public confidence in the court has since collapsed to historic lows.

“Six radical justices enacted a bonanza of right-wing policies during the last term, reshaping American life in wildly unpopular ways over just a matter of days,” Whitehouse said in a statement introducing the legislation. “The American people are fed up with policymaking by unaccountable Supreme Court justices, and we have a solution. This important good-government reform would check the activist Court’s rogue decisions by ensuring policymaking stays where the Constitution delegated it: in the hands of the American people and their elected representatives.”

The bill combines elements from the Congressional Review Act, which gives Congress fast-track authority to invalidate executive branch regulations, and the budget reconciliation process. The CRA and reconciliation are two of the few legislative mechanisms that evade the Senate’s filibuster rules and allow legislation to pass by simple majority.

The Supreme Court Review Act would let Congress respond to certain Supreme Court decisions within a set time frame after the decision comes down. The process would require the comptroller general of the United States to file a notice to Congress within two days of a covered decision. In the Senate, that notice could then either be referred to a relevant committee within 10 days or to the floor with the support of 16 senators. The bill would allow the minority to respond to any legislation by putting its own legislation on the floor if it has the support of 40 senators.

The bill also copies the Byrd Rule used in the budget reconciliation process, disallowing legislation introduced under the Supreme Court Review Act from including any extraneous provisions.

“This bill would allow Congress to more efficiently exercise its existing power to respond when the Court misinterprets Congressional intent or strips Americans of fundamental rights,” Cortez Masto said in a statement.

A one-page summary of the bill includes some examples of decisions that could be overridden if it were enacted. These include the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe, the decision in West Virginia v. EPA that limited the use of the Clean Air Act to regulate power plant carbon emissions, the 2021 Brnovich v. DNC decision that reinterpreted elements of the Voting Rights Act, and the decision in Alabama Association of Realtors v. HHS that invalidated the Biden administration’s COVID-19 eviction moratorium.

The bill, co-sponsored by Democratic Sens. Elizabeth Warren (Mass.), Mazie Hirono (Hawaii), Richard Blumenthal (Conn.), Ron Wyden (Ore.), Alex Padilla (Calif.) and Kirsten Gillibrand (N.Y.), joins a growing list of measures introduced by Democrats in response to the court’s rightward swing. The composition of the court changed dramatically after Senate Republicans blockaded President Barack Obama’s nominee to fill the seat of the late Justice Antonin Scalia in 2016 and Trump subsequently appointed three justices, including one as voting in the 2020 election was underway.

Other court-curbing measures include legislation to add four seats to the court, impose term limits on justices, and require justices to abide by the same ethics and recusal laws as lower court judges. Some members, like Rep. Alexandria Ocasio-Cortez (D-N.Y.) are asking Democratic leadership to strip the court of its jurisdiction to hear cases on certain topics like abortion, same-sex marriage and legal contraception. [Fundamental civil liberties.]

As I have explained previously:

If Congress really wants to stop this reactionary Court, it has the constitutional authority to strip the court of jurisdiction over any fundamental civil liberties that Congress does not want unelected and unaccountable justices toying with.

Law Professor Christopher Sprigman explained this in Stripping the Courts’ Jurisdiction (excerpt):

[T]he 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.

If Democrats really want to get serious about constraining an activist radical Republican Supreme Court, this is the bill that they would be trying to pass. But they are not doing so, of course, because of the archaic Senate filibuster rule.

President Joe Biden has not yet endorsed any of the proposals to curb the court’s power or make it easier for Congress to respond to its rulings.

Biden established a Presidential Commission on The Supreme Court of The United States to kick the can down the road to avoid proposals for expansion of the Court. Final Report. Biden really wants to avoid discussing this issue.

President Biden will have to address reining in an activist radical Republican Supreme Court that is acting as a super-legislature, a modern-day Star Chamber of unelected and unaccountable judges abusing their power. This cannot be allowed to continue.