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Iconoclast Roundup: Time to spank the Supreme Court. [1]

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Date: 2022-07-13

In 2020, the national GOP, in preparation for Donald Trump’s campaign, [] had no new national platform. [I]n part it was because the GOP can effectively enact its entire domestic policy agenda through unrestrained state legislatures in red states and unrestrained federal courts in blue states. So the Republican Party has, to its credit, spent the past 30 years identifying these two institutions—state legislatures and federal courts—as important sources of power. And they have taken over these two institutions. Most states at this point are under one-party control. There’s currently a 6–3 conservative majority on the court that doesn’t look like it’s going anywhere anytime soon. And so in theory, Congress or federal agencies can threaten this dominance. Congress could, for example, enact a law that codifies Roe, or a much better version of Roe, and says here is the new national standard for reproductive justice. But so long as the Republican Party controls either the House, or 40 senators, or the presidency—it just needs one of those three veto points—Congress can’t do anything new. And in theory, there are existing federal laws like the Voting Rights Act or the Civil Rights Act that would prevent state legislatures from doing things. But this Supreme Court is taking care of those laws by either invalidating them or interpreting them so absurdly narrowly that they have no effect, and executive agencies can’t enforce them.

In the next term, the Supreme Court’s conservative majority looks set to end checks on Republican-dominated legislatures that have gerrymandered themselves into one-party rule. In recent times, state court judges have used their power to interpret state constitutions to end partisan gerrymandering. But the right has a new “theory” for how to protect their extreme efforts to insulate right wing legislatures from their state supreme courts. As Amy Howe of Scotus blog writes:

The Supreme Court will take up a case from North Carolina next term that could upend federal elections by eliminating virtually all oversight of those elections by state courts. On Thursday, the justices granted review in Moore v. Harper, a dispute arising from the state’s efforts to draw new congressional maps in response to the 2020 census. The doctrine at the heart of the case is known as the “independent state legislature” theory – the idea that, under the Constitution, only the legislature has the power to regulate federal elections, without interference from state courts. Proponents of the theory point to the Constitution’s elections clause, which gives state legislatures the power to set the “Times, Places and Manner of holding Elections for Senators and Representatives.” . . . In February 2022, the North Carolina Supreme Court blocked the state from using the map in the 2022 elections and ordered the trial court to either approve or adopt a new map before the end of the month. The trial court adopted a new map, drawn by three experts appointed by the court. Republican state legislators came to the Supreme Court on an emergency basis in late February, asking the justices to reinstate the legislature’s original map before the state’s primary election, which took place on May 17. But over a dissent by Alito that was again joined by Thomas and Gorsuch, the court turned down the request. Both the Alito dissent and a concurring opinion by Justice Brett Kavanaugh, however, called the “independent state legislature” theory an important question, with Alito adding that the justices “will have to resolve this question sooner or later, and the sooner we do so, the better.” The legislators returned to the court later in March, seeking review of the North Carolina Supreme court’s decision invalidating the legislature’s map and ordering a new map for the 2022 elections. They told the justices that the state supreme court’s order was “starkly contrary to the” elections clause. The text of that clause, the legislators insisted “creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the Legislature’ of each State.” The “independent state legislature” question, the legislators stressed “‘is almost certain to keep arising until the Court definitively resolves it.’” And because North Carolina will use the map created by the court for its 2022 congressional elections, they continued, the justices should resolve the question in this case, rather than having to do it on an expedited basis in a dispute arising after an election has already occurred.

Ethan Herenstein and Thomas Wolf of the Brennan Center for Justice rebukes the right’s new “theory”:

Crit­ics point out several flaws in the inde­pend­ent state legis­lature theory and its justi­fic­a­tions. First, the framers did not trust state legis­latures to run fair elec­tions. They empowered state legis­latures to admin­is­ter federal elec­tions only with great hesit­ancy. “What led to the appoint­ment of this Conven­tion?” John F. Mercer of Mary­land rhet­or­ic­ally asked his fellow deleg­ates to the 1787 Consti­tu­tional Conven­tion. “The corrup­tion & mutab­il­ity of the Legis­lat­ive Coun­cils of the States.” James Madison, simil­arly suspi­cious of the legis­latures, prepared for the conven­tion by compil­ing a list of ways state legis­lat­ors had failed to act in the national interest. This mistrust comes through in the Elec­tions Clause, which reserves to Congress the power to over­ride the abuses of power that Madison and his colleagues expec­ted. Given the low regard in which the framers held state legis­latures, it’s diffi­cult to imagine they would want to free those lawmak­ing bodies from the exist­ing constraints of the gubernat­orial veto, the state consti­tu­tion, and judi­cial review. There is further histor­ical evid­ence against the inde­pend­ent state legis­lature theory. During the found­ing era, most state consti­tu­tions regu­lated federal elec­tions and most state legis­latures shared their elec­tions power with other state actors. These prac­tices, which are incon­sist­ent with the inde­pend­ent state legis­lature theory, were uncon­tro­ver­sial at the time. Crit­ics also reject the theory’s narrow approach to the Consti­tu­tion’s text. They point out that the term “legis­lature” does­n’t neces­sar­ily mean “exclus­ively the legis­lature.” The First Amend­ment, to draw a paral­lel, liter­ally prohib­its only “Congress” from discrim­in­at­ing on the basis of speech and reli­gion. But we under­stand the amend­ment to apply to the federal govern­ment in its entirety, includ­ing the judi­cial and exec­ut­ive branches. That’s why, to take one example, a judge can’t close off her courtroom to athe­ists.

Meanwhile, Senate Democrats continue to be divided about reasonable court reforms, demonstrating their spinelessness yet again:

Senate Democrats say discussions about reforming the Supreme Court are picking up steam in the wake of decisions striking down Roe v. Wade and limiting the EPA’s ability to regulate climate-warming emissions. But the talk is being fueled by progressive senators while vulnerable Democratic incumbents, fearing backlash, are keeping their distance. The proposals under discussion include expanding the Supreme Court, imposing term limits on justices and requiring the high court to adopt a code of ethics to shed more light on special interest groups trying to influence its rulings. Democrats acknowledge they don’t have the votes to expand the Supreme Court or place term limits on justices, though they say the recent rulings by the court are fueling support for those ideas.

Ian Millhiser of Vox shows that there are plenty of ideas on how to do so besides court-packing, that would not be quite so radical for midterm swing voters:

1) A “balanced” Court One of the leading alternatives to simply adding and filling new seats on the Court with Democratic judges is still a form of court-packing. But the aim is to create a politically balanced Court where neither party dominates. 2) The “Supreme Court lottery” A separate proposal from Epps and Sitaraman would transform the Supreme Court from a permanent panel of nine justices to an ever-changing panel of judges. These judges would briefly rotate onto the Supreme Court before returning to their regular job on a federal appeals court. 3) Term limits Another way to prevent justices from “strategically timing their retirement” is term limits. 4) Jurisdiction stripping The Constitution gives the Supreme Court power to hear most federal cases on appeal from a lower court, but it may only assert jurisdiction over cases “with such exceptions, and under such regulations as the Congress shall make.” Accordingly, Congress has at least some power to tell the Supreme Court that it is not allowed to hear certain cases. 5) Supermajority voting requirements In a forthcoming law review article, law professors Ryan Doerfler and Samuel Moyn propose that Congress could require a supermajority of justices to vote to strike down federal laws. This proposal could potentially be implemented in two different ways: Congress could either impose a universal rule requiring a 7-2 majority on the Supreme Court to strike down a federal law or identify particular laws, such as the Affordable Care Act, which can only be struck down by a supermajority. 6) Presidential (or congressional) resistance to the Supreme Court Abraham Lincoln began his presidency with a broadside against the Supreme Court. Reacting to the Supreme Court’s pro-slavery decision in Dred Scott v. Sandford (1856), Lincoln attacked the very idea that the justices should have the final say on constitutional matters in his first inaugural address: [I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Though Lincoln conceded that Dred Scott was binding upon the particular parties to that litigation, he rejected the idea that the president or Congress is bound by the Court’s understanding of the Constitution. The Lincoln administration issued a passport to a Black man, defying Dred Scott’s holding that Black people cannot be citizens. And Lincoln signed legislation banning slavery in the territories, defying Dred Scott’s conclusion that slaves remained slaves even after entering a free territory. . . . Suppose, for example, that the Supreme Court strikes down the Affordable Care Act. A Democratic president could order the US marshals not to enforce this decision. They could order the Treasury to continue to provide subsidies to states and individuals entitled to receive them under Obamacare. And the president could routinely pardon executive branch officials who continue to make these payments, neutralizing a federal law that plausibly could subject these officials to prosecution in a future administration. . . . 7) State resistance to the Supreme Court Just as the executive or legislative branch might resist a Supreme Court decision through departmentalism, states might invoke a theory known as “interposition” to defy a court order. The history of interposition, which posits that a state may “interpose” its authority between the Supreme Court and its citizens, is not a happy one. In the wake of the Supreme Court’s desegregation decision in Brown v. Board of Education (1954) Southern segregationists relied on interposition to justify defying Brown. Martin Luther King Jr. called out segregationist Alabama Gov. George Wallace, in King’s “I Have a Dream” speech, for “having his lips dripping with the words of ‘interposition’ and ‘nullification.’” Yet there are constitutional systems where something similar to interposition exists without this same tainted history. Canada’s Charter of Rights and Freedoms, for example, contains a provision known as the “Notwithstanding Clause,” which allows either the national parliament or a provincial legislature to declare that at least some laws shall operate “notwithstanding” a court decision declaring that the law violates Canada’s charter — although these overrides automatically expire after five years if they are not renewed. 8) Omnibus legislation overruling past Supreme Court decisions One model that Congress could follow is the Civil Rights Act of 1991, a bill signed by President George H.W. Bush back when it was still possible to achieve a bipartisan consensus against discrimination. In its 1988 term, the Supreme Court handed down five decisions that, in the words of one scholar, “substantially eroded Title VII of the Civil Rights Act of 1964,” which prohibits many forms of employment discrimination. Congress enacted the 1991 civil rights bill to overrule, or, in some cases, modify those five decisions. Similarly, Congress could enact a Civil Rights Act of 2021 that overrides several Supreme Court decisions at once. This bill could include, for example, provisions tossing out the Supreme Court’s entire forced arbitration jurisprudence, which allows companies to force their workers and customers into a privatized justice system that favors corporate parties. It could overrule decisions weakening the Voting Rights Act. It could also override less famous decisions such as Vance v. Ball State University (2013), which made it much harder for workers who are sexually harassed by their boss to sue their employer; or Gross v. FBL Financial Services (2009), which weakened protections against age discrimination. Such an omnibus bill would serve two purposes. It would get rid of Court decisions that weakened laws intended to protect our democracy and halt practices such as discrimination, and it would send a clear message to the justices that there’s a new sheriff in town who is keeping a close eye on them. 9) Expedite legislation seeking to overrule Supreme Court decisions The Congressional Review Act (CRA) lays out an expedited process that Congress can use to swiftly overrule regulatory decisions by the executive branch. A bill overruling a federal regulation through the CRA still must pass both houses of Congress and be signed by the president, but the CRA’s streamlined process makes it relatively easy for lawmakers who oppose a particular regulation to override it quickly. In an essay published in the Atlantic, Sitaraman suggests enacting similar legislation allowing Congress to swiftly overrule Supreme Court decisions: If the Court issued a decision interpreting a statute or regulation, Congress would have 30 days to vote on whether to open a reconsideration process. If Congress voted yes, the speaker of the House, the Senate majority leader, and the minority leaders would appoint a special committee in each chamber (with proportional party membership) to design a legislative fix for the full body to vote on within the next 30 calendar days. The bill would then go to the other house, where it would be voted on within 10 days through a privileged, fast-track process, which would avoid common legislative snags like the filibuster and committee hearings. The president would then sign the law or veto it, as with any ordinary piece of legislation. Such legislation could create a normalized process whereby Congress routinely reviews the Supreme Court’s decisions and corrects decisions that read federal laws in damaging or implausible ways. It would also act as a complement to an omnibus bill in the vein of the Civil Rights Act of 1991. The omnibus would take care of past decisions that misread federal law, while the review act would prevent new decisions from having much effect.

But the problem is that unless we pack the Supreme Court, they’ll find a way to strike down any one of these efforts to restrain it. There’s no way around that crucial fact.

As Millhiser notes, time is running short to restrain them:

Realistically, however, if Congress wants to prevent the Supreme Court from entrenching its power to veto federal laws and manipulate voting rights, it’s likely to only have a short window in which to do so. Right now, polls show Democrats are favored to win the White House and both houses of Congress, but even if that prediction bears out, Democrats won’t control the elected branches forever. The biggest risk from a 6-3 Republican Supreme Court is that the conservative justices will bide their time, maybe handing down a few decisions shifting the law marginally rightward, but avoiding anything like a new major attack on the Voting Rights Act until after Republicans gain control of at least one house of Congress. And once Republicans control at least one veto point, they can halt any effort to rein in Supreme Court decisions that place a thumb on the scales of democracy. If Democrats do regain control of Congress and the White House, in other words, they may need to make a difficult decision quickly. Even if they dominate the 2020 election, Democrats may have only a two-year window before Republicans regain the House or the Senate. And once that happens, American democracy will be at the mercy of a 6-3 conservative Court.

At this point, everyone knows the court is political and that it has become a problem child that is out of step with the views of most Americans. It is a political problem, which requires political solutions. Law professor Stephen Feldman makes that clear in an NPR interview:

The court has always been political in multiple ways. No. 1, Congress has changed the size of the court multiple times during history, often for political reasons. No. 2, the nomination and confirmation process has always been partly political. So, you know, because of polarization today, sometimes the political fights are more stark, but if you go back in history, confirmations have quite often been vigorous political battles. And then finally, the actual decision-making process of the court is always political in part. I call it a law-politics dynamic. So this notion that the justices should decide apolitically or neutrally I think is just false. Constitutional interpretation in particular - if we look at constitutional cases, it's never mechanical. It's never two plus two equals four. The justices' political backgrounds, their cultural views always influence how they interpret the relevant text, whether it's the constitutional text or a statute. So, for instance, if you compare like Justice Alito on the far-right and Justice Sotomayor, who's more progressive, they'll look at the same constitutional language, and they'll interpret it differently. And it's not because one is lying or being disingenuous or doesn't know how to interpret the constitutional language. It's because they're interpreting from different political perspectives.

Tune in next time.

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[1] Url: https://www.dailykos.com/stories/2022/7/13/2110100/-Iconoclast-Roundup-Time-to-spank-the-Supreme-Court

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