The Supreme Court has set itself on course to become the dominant force in the federal government – often in direct opposition to the views of the citizenry.

On voting rights, on equal rights, on firearms and on global warming, its five-member phalanx – with Chief Justice Roberts occasionally bringing up the rear – is imposing its minority views on the public. It represents a danger that may lack the spectacular nature of the former president’s desperate attempt to hold onto power, but may be even more alarming.

This is not Congress, with a majority and minority party contesting for dominance, subject to frequent elections. The voters have essentially no say over who serves on the Supreme Court, and the heedlessness of its most recent members strains the boundaries of the trust without which the whole system would collapse.

The court has already accepted a case, Moore v. Harper, that could destroy the checks and balances in the state and federal system by giving state legislatures control over elections with no review by any court.

That’s because the Supreme Court, in 2019, explicitly removed itself from issues of partisan gerrymandering, while empowering state courts to conduct such reviews.

Under the “independent state legislature theory,” however, lawmakers could impose any redistricting plan they want. If pursued far enough, they could even choose their own presidential electors – exactly the scheme that seemed hare-brained when Trump forces pursued it.

Advertisement

Congress, the branch that actually writes the laws, needs to respond. Whether it will, or can, depends very much on the results in November.

Fortunately, Congress has considerable power here. Other than mandating a Supreme Court, and “such inferior courts” as Congress “may from time to time ordain and establish” the Constitution is silent on court organization and deployment.

Before the battle is fully joined, it’s important to understand the options Congress has to ensure the people are adequately represented, and their rights are not taken away by judicial fiat.

In the past, Congress has limited the court’s jurisdiction – prescribing what subjects can be legitimately reviewed. In current terms, given the hash the court has made of elections and voting – elevating money to be the key determinant in elections, gutting the Voting Rights Act of 1965 – that might include new voting rights legislation; see Moore v. Harper.

Congress could also increase, or reduce, the size of any court, including the Supreme Court. “The nine” is tradition only, though a venerable one. During the Civil War, to ensure a pro-Union majority on a court still dominated by Southerners, Congress created a 10th justice.

Most famously, President Franklin Roosevelt in 1937 proposed a “court packing” plan that would have allowed him to select another justice for each incumbent over age 70 – as most were, when the average lifespan was shorter than today. Ultimately, Congress rejected the plan, which seemed stunning given that Democrats had supermajorities in both House and Senate.

Advertisement

The incident is often misrepresented as a defeat for Roosevelt, which it was not. Roosevelt, the only president elected four times, knew how to play the long game, and his underlying intent wasn’t necessarily to pack the court, but to change its direction – as in fact he did.

Five justices had consistently overturned New Deal legislation – the very agenda Roosevelt was elected to carry out. Chief Justice Charles Evans Hughes, who sometimes joined the five, sometimes dissented, worried about the court’s legitimacy.

Some say he persuaded Owen Roberts to change his votes – the “switch in time that saved nine” – and another justice, Willis Van Devanter, decided to retire. This allowed Roosevelt to appoint Hugo Black, who in time became one of the court’s leading liberal voices on civil rights.

Van Devanter, who had served since 1911 and was 78, had wanted to retire, but as an economy move during the Great Depression, Congress cut pensions in half. Roosevelt’s bill, shorn of the “packing” provisions, restored pensions, and Van Devanter stepped down a few months later.

Roosevelt hadn’t appointed a single justice in his first term, but appointed five in his second; the crisis passed. The court never again rejected a New Deal law – which included Social Security, guarantees for labor organizing, minimum wage and hours laws, and a host of other measures now the bedrock of our social compact.

A similar presidential initiative might not have the same result today, however. The current justices were picked for their youth and ideology, and Joe Biden is not Franklin Roosevelt.

Yet the popular will cannot be ignored and derided by the Supreme Court forever. Court-packing must remain on the table – to be wielded only if the court remains intransigent.

Douglas Rooks, a Maine editor, commentator and reporter since 1984, is the author of three books. His first, “Statesman: George Mitchell and the Art of the Possible,” is now out in paperback. He welcomes comment at drooks@tds.net

Comments are not available on this story.

filed under: