Hiltzik: Put the right Supreme Court on a leash

If Supreme Court decisions in 2022 give you goosebumps with their gutting abortion rights, limping gun restrictions, and undermining the government’s ability to address global warming, buckle up: the 2022-23 session could be just as bad or worse.

It should come as no surprise, then, that interest in ways to clip the wings of this Supreme Court has continued to grow.

The court’s list includes cases that could limit the federal government’s enforcement of drinking water regulations, limit voting rights law, ban positive action policies at universities, and protect LGBTQ people from discrimination.

The reassuring notion of the court as arbitrator is in shambles. It is now Judge Samuel Alito’s court: methodologically flexible but ideologically rigid.

— Law Professors Joseph Fishkin and William E. Forbath

The most consequential, and for some observers the most dangerous, case concerns what is known as the doctrine of independent state legislature.

The argument is that legislatures should be free to regulate congressional elections without regard to their own state constitutions, governors, or courts.

This position could open the door to widespread gerrymandering and even hamper the conduct of state-level presidential elections, posing a new threat to the democratic process.

The court’s rulings on so many closely watched issues in the last session appear to have pushed its popularity and public standing to historically low levels, according to opinion polls.

“The reassuring notion of the court as arbitrator is in tatters,” noted UCLA law professors Joseph Fishkin and University of Texas law professor William E. Forbath in a recent comment. “It is now Judge Samuel Alito’s court: methodologically flexible but ideologically rigid.”

Alito was the judge who made the infamous decision in Dobbs vs. Jackson Women’s Health Organization, the 1973 Roe vs. Waten.

Americans are perhaps less perturbed by the actual outcome of these cases than by their obviously sloppy and overtly partisan reasoning.

In previous decades, Fishkin notes, Anthony M. Kennedy (who sat 1988-2018) and Sandra Day O’Connor (1981-2006) occupied a moderate center. “People felt that a good argument could convince the court,” he says. “It’s going away. It’s clear that you can predict how Alito will govern by finding out what Republican politics are.”

We examined the prevailing ideas of bringing the court back to the center or at least bringing its judgments closer to public opinion. These include expanding its size to create seats for presumably more liberal jurists, or imposing term limits to prevent a single bloc from dominating its deliberations for decades long after the political environment in which they were appointed has withered.

These ideas have their flaws. While the Constitution gives Congress the power to determine the size of the court, the one-party addition could result in a series of tit-for-tat expansions from now until the end of recorded time.

Term limits or similar regulations such as age limits could encounter constitutional problems. The Constitution states that federal judges “shall hold office with good manners,” which may preclude all other tenure standards.

But as Fishkin and Forbath noted, there are other options that may be more effective and targeted in curbing the court’s partisan instincts. These fall into the general category of “jurisdiction stripping,” Fishkin told me: “Congress prohibits or limits the power of the federal courts to review its laws.

There is little doubt that Congress has that right. Most recently, it was exercised in the Inflation Reduction Act, the spending plan approved by President Biden on 8/16. The measure prohibits judicial review of provisions related to drug pricing, including how the rule allowing Medicare controls drug pricing negotiate, is implemented.

A more telling example, Fishkin told me, concerns the Norris-LaGuardia Act of 1932, which protects workers’ rights to organize and participate in collective bargaining. Among the most important provisions was a severe limitation on the powers of federal courts to issue injunctions against unionizing, picketing, strikes or peaceful assemblies.

This severely leveled conditions in labor-management relations that had prevailed since the Pullman strike of 1894, when President Grover Cleveland’s administration first sought and obtained injunctions against the strike to prevent its spread throughout the railroad industry the employers were aligned. (Cleveland attempted to redress its apparent employer bias by signing Labor Day into law as a national holiday.)

“People often think of ‘jurisdiction’ in terms of whether the courts can even hear a particular case,” says Fishkin. “But sometimes it is said that the courts cannot use certain instruments.”

Among other options in this category, Fishkin says, is the possibility of delaying the courts’ power to rule on certain laws until they’ve had a chance to work — and presumably gained popularity. Congress could also anticipate the Supreme Court’s objections to a new law by introducing alternatives to provisions it might repeal that might be more awkward but unchallengeable.

For example, Congress may have protected the provisions of the Affordable Care Act requiring all states to expand eligibility for low-income residents in Medicaid, which states and the federal government jointly fund, by declaring that Medicaid would convert to Medicaid if the court overturns the expansion of a nationwide program.

To do so would have to have anticipated the decision of Chief Justice John G. Roberts Jr., who would have affirmed most of the law but removed the mandate for expanding Medicaid and gave states the option of adopting or rejecting it.

To date, 12 red states have rejected enlargement on ideological grounds, despite undeniable evidence that enlargement brings cost savings to states that accept it and leads to healthier residents.

It’s unclear how the derecognition could work if Congress legislates abortion rights, as Democrats have promised if they retain control of both houses; Given that states are the source of post-Dobbs abortion restrictions, Congress may want to give the court some authority to decide state-level restrictions.

But on gun rights, Fishkin suggests Congress could create a legal zone for states and localities to regulate allowing and carrying rules on a health and safety basis to circumvent the Supreme Court’s Second Amendment approach.

The best thing about these options is that they return judgments about the underlying issues to the political realm, where they belong, rather than taking legal action.

Whether voters will support strong measures to limit the Supreme Court’s authority depends, of course, on the court’s public esteem.

A common assumption, supported by opinion polls, is that the court’s legitimacy is waning. It is still questionable whether this trend has reached a stage of crisis for the court.

In recent months, several justices – notably Justices Alito, Roberts, Amy Coney Barrett and Clarence Thomas – have sought to counter the notion that the court is losing legitimacy. (Regardless, the doctrinal conservatism of Barrett, Alito, and Thomas may undermine that legitimacy.)

Apart from Roberts, who has tried to chart a more centrist-conservative course, none of them have shown any willingness to moderate their positions on the big issues being pursued by the public.

That’s a departure from the court’s behavior the last time it was seen as out of step with public sentiment — in the 1930s, when it made a series of decisions overturning New Deal programs and policies like the minimum wage were obstructed.

The court’s rulings, based on the intransigence of four conservative judges, prompted President Franklin D. Roosevelt in 1936 to propose a plan that would allow him to add several new judges to the judiciary, known as the court-packing scheme.

The court, aware that its public standing was at a low ebb, reversed the minimum wage, upholding a Washington state statute after invalidating an almost identical New York statute; after 1936 the court never reversed a New Deal program. His about-face was popularly derided as “the change of time that saved nine”.

But dismay at the Supreme Court’s rulings may not necessarily reflect popular desire to reform the institution. There is a very deep legacy of respect for the court as an institution that perhaps has not been sufficiently shaken.

Many Americans still regard the court as a beacon of progressivism, derived from the Warren Court of the 1950s and 1960s and decisions such as the anti-segregation Brown vs. Board of Education of Topeka (1954), as well as a number of decisions protecting freedom of speech , the rights of the accused and the separation of church and state. But the Warren years were perhaps a liberal exception to a long conservative tradition.

“We are in the early stages” of developing public opinion about the Supreme Court, says Fishkin. “There is a public debate about this matter that needs to continue for a few more years. Although the court is likely to give many more reasons for this conversation to continue and escalate.”

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