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End the Drama, Reform the Court
Senate Republicans should fill the Supreme Court vacancy and vote on fixing the Court permanently. Both major parties agree there is a real problem with the Supreme Court, making membership in the court a subject of the most extreme political tactics. The Republicans must keep their decades-old campaign promise to correct the leftward march of the federal courts. At the same time they should give both Democrats and Republicans real hope of limiting the courts’ potential excesses.
I suggest something like the following:
Joint Resolution
Proposing an amendment to the Constitution of the United States.
Whereas:
1. The United States Supreme Court has become the center of fierce political fighting over the past half century.
2. The fighting is over placing justices on the court who will rule on political, economic, and cultural issues according to competing views.
3. The attempt to shape the way the Court rules is driven by a long history of good, bad, and horrible court decisions. The Taney Court majority was wicked, their opinion was evil and unconstitutional. The line of cases that gutted the 14th and 15th Amendments were equally unconstitutional, and gave false legitimacy to the oppression of African Americans for almost a century.
4. The source of all this fighting and sometimes wickedness is the failure of the original Constitution to define the Supreme Court’s power relative to the other branches, followed by the Court serving its own interests by claiming for itself the power to make the final determination of the Constitution’s meaning. This legal fiction has been accepted by the Congress and the President over the years as a useful fix to conflict between the two elected branches.
5. That useful fix and legal fiction have now frayed the fabric of our constitutional republic. It is time to set in writing real powers and real checks, properly decided by the States.
Resolved by the Senate and House of Representatives of the United States assembled in Congress (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid, to all intents and purposes, as part of the Constitution when ratified by three-fourths of the several States:
Article XXVIII.
Section 1: The United States Supreme Court shall have the power to review all cases within its expressly granted jurisdiction, reviewing laws and State constitutions applicable in those cases. The Supreme Court may choose to rule on and strike down or uphold laws and executive actions, based on the text of federal laws or the Constitution.
Section 2: On cases not raising constitutional issues, the Congress of the United States may vacate any published opinion, or any Circuit Court opinion appealed to the United States Supreme Court but not heard, by a three-fifths majority vote of the full number of the House of Representatives and the full number of the Senate within six calendar years of the date of publication of the opinion or notice of failure to hear a circuit court case. This vote shall be mandatory, not subject to delay or denial by rules of Congress. The vote shall be by roll call.
Section 3: The States shall have the power to vacate any published opinion of the United States Supreme Court, as well as any Circuit Court decision appealed to the Supreme Court but not heard, provided that the case involves a constitutional issue.
3.a. On cases involving constitutional issues, the State legislatures shall vacate any published opinion by a vote of a simple majority in each State legislature. The vote of three-fifths of the States, within six calendar years of the date of publication of the opinion or notice of failure to hear a circuit court case, shall overturn the United States Supreme Court’s decision, provided this vote is confirmed by a second vote.
3.b. The States shall vote a second time on any case that was overturned by the States. This second vote shall be held in the first legislative sessions after elections for State legislatures. Three-fifths of States, by a vote of their legislatures, shall affirm the prior judgment of the States. This is to ensure that the legislatures express the true will of the citizens of their States.
3.c. These votes are mandatory, not subject to delay or denial, notwithstanding any other provision of constitution, law, rule, or procedure. The first round of votes shall be called on petition of one-third of the members of a State legislative body, on a state-by-state basis. The votes shall be by roll call.
3.d. Any published opinion or case rejected or disposed of by other means at the United States Supreme Court, having exceeded six calendar years from the date of the Supreme Court’s publication of its disposition, shall not be subject to review by the Congress or the States under this amendment. Failure to act, but the Congress or the States, shall affirm the Court was correct.
Published in Politics
I agree that after this Supreme Court confirmation battle, in the next congress the Republicans should start to put forth plans to reform the Courts. I haven’t thought through the details of exactly what that would look like though. My first thought is that the easiest way to fix things is to just put a term for each justice – most who have proposed such a term have used 18 years which seems about right to me. You could set it up so there would be a vacancy every two years. I think this would make each nomination less contentious.
Good idea, but you have to game the situation where the Dems don’t want the deal and why. The Dems have seen the court as their alternative path to ideological hegemony. Move to a new justice every 2 years and it has the desired effect from a Republican perspective, but would it have the desired effect for the Dems. Republicans don’t want the drama, but are Dems against it?
@cliffordbrown Your proposed amendment is just right, I think. It allows the legislative branch and, more importantly, the states, a say in what the court rules as constitutional/unconstitutional.
This should have been in the original document, but the Founders never thought the Judicial branch would become that important.
Yes. This was an important point of dispute between the Federalists and Anti-Federalists. The Federalists thought the Supreme Court would be the least dangerous political institution. The Anti-Federalists properly anticipated the trend towards unchecked supreme power.
To be clear, the time is now, not later. Make it an election issue because the Court is already an election issue. Get every senator on the record before this election. Term limits do nothing about bad decisions, and the arrogation of supreme power over the nation through supposed final “interpretation” of the Constitution.
The fix is to just ignore the Court
When so much depends upon whether or not a single individual is appointed to a position in the government It is a clear sign that the government has waaay too much power.
I think this is probably what the founders were thinking.
As a legal layman, it seems to me that there are two kinds of cases in this situation. One is where the court necessarily holds all the power, because the executive branch needs something that only a court can give: a conviction of a defendant for example. If the court refuses to convict a defendant because it believes the law used to prosecute is unconstitutional, it is exercising its power within it delegated realm. These can’t really be ignored, unless you’re will to lock people up without a conviction in court. But there’s another kind of case: cases where people sue the government because they don’t like what the government is doing. Like when they sued Trump over the border wall. These kinds of cases boil down to: “I think what the president is doing is illegal, please tell him to stop.” These can and should be ignored if the the president, or congress believes the order is wrong.
Exactly.
Nowhere does the Constitution give the Court sole power. Nowhere.
Marbury VS Madison is crap.
Indeed.
I disagree, and here’s why.
I totally disgaree.
Marbury v Madison is the court assuming powers in that are not given to it, and saying it has sole power to interpret.
That is bull. There is no implication that the other branches can interpret. That is not how it is understood in 2020. Period. If the President said he had that power, they would impeach him.
When it comes to the meaning of Marbury, why should it matter how it is interpreted in 2020? Shouldn’t we care about what it actually means?
Of course other branches *can* interpret. They just choose not too.
George W Bush should have been impeached for signing McCain-Feingold after he explicitly said he thought it was unConstitutional.
Likewise Nancy Pelosi when she was asked where in the Constitution the Congress had authority to pass the ACA and her only response was to laugh and say “Are you kidding?”
Gee, SCOTUS even said they were supposed to interpret.
More here!
Every president (and Congress-critter, military officer/troop, etc.) takes an oath to “…protect and defend the Constitution of the United States…”. A president should never sign a law he thinks is unconstitutional. He violates his oath of office by not protecting the Constitution. @miffedwhitemale, you are correct. Bush 2 should have been impeached.
Implication where? And this comment string simply reinforces the OP.
Comment on OP?
Agree. I like this line from your post:
If the justices are doing a poor job interpreting the Constitution, there is a remedy for that: win elections and appoint new justices.
Supreme Court decisions create a crucial bulwark against legislative overreach, which could happen if one party, for some reason, gained a massive advantage in Congress. To give just one example, the Court was in the process of simply stopping the New Deal, but it panicked after Roosevelt’s attempt to pack it and began to let the legislation pass. If anything, the Court has been too ready to bow to the opinions of the people in the 20th century, as shown by its decisions on abortion and Obamacare. That’s a problem of feeling constrained by the prevailing political mood rather than by the Constitution.
The problem is not the power of judicial review. The problem is that too few justices have confidence in the power it gives them to ignore the popular will.
By the way, Trump and McConnell are kicking some serious butt when it comes to judicial appointments.
https://www.brookings.edu/blog/fixgov/2020/05/05/how-close-is-president-trump-to-his-goal-of-record-setting-judicial-appointments/
Stuff like this is what Never Trumpers need to be looking at and taking seriously. Trump’s work in the judiciary looks (to my admittedly cursory glance) to have a lot of potential for reining in liberal abuses. Stop being fooled by what’s on the surface; Trump is doing his really important work behind the scenes.
We need four more years of this. Carter got to appoint a third of the federal judiciary. It would be nice for Trump to have a chance to lay the foundation for good legal decisions for the next 10-20 years, regardless of who wins the presidency.
Add this RBG replacement, and Trump gets a quarter in just one term.
Another article on Trump’s appointments from the NYT:
https://www.nytimes.com/2020/03/14/us/trump-appeals-court-judges.html
[Also of note: The Trump judges refused to allow themselves to be quoted by the NYT. That’s the kind of spine I want to see in the judiciary.]
You want winning? This is winning. Four more years, please. With plenty of conservative judicial review.
We have seen that strategy fail for over four decades. They have simply arrogated too much power to themselves without a real check on them, not theoretically on the institution someday but on their actual words.
The Supreme Court overrides the will of the people all the time and it is wrong. Political debates should be settled politically.
The problem is that what the Left want to do is make more and more things “rights” that they like to take arguments off the table. This includes twisting their rights to suppress real ones (like freedom of worship).
The Supreme Court has too much power, and M v M is part of the problem plan and simple. The Court should be smacked down hard, but the reality is that Congress does not want to assume its rightful place as the strongest branch. Instead, it delegates is power, unconstitutionally, to the Executive.
This is wrong, wrong, wrong.
Maybe this amendment would work, but I doubt it, because there is no stomach for it.
What would work is what I have suggested before. Let me repost
Clifford, How would your proposal deal with the issue I mentioned in my post above, namely, the Supreme Court simply refuses to enforce a law it deems unconstitutional? The states could “overturn” that decision, but what effect would that have? For example, if they refuse to convict an abortionist for violating a state law outlawing abortion, even after the states overturn their decision by the procedure you propose, what would happen then? Would the abortionist be imprisoned without a conviction in court, merely because the states overturned the acquittal? That procedure would seem to require further changes in the Constitution beyond your proposal.
Here is what I think needs to happen:
https://ricochet.com/805499/ending-the-regulatory-state-by-forcing-congress-to-do-its-job/
Conviction happens by jury at the state or federal district court level. The Supreme Court simply affirms or overturns the conviction on the basis of law, mostly giving great deference on facts to the trier of facts. The court members do not want to be that exposed. They have always sought the color of law and the Constitution. I propose a real check on their claims, while not making the correction too easy.
I think we agree on nearly everything. Paulsen too. And I look forward to looking over the new post.
The disagreement is whether this is actually what Marbury teaches, and not what people say it teaches–whether Marbury is correctly interpreted by the goons who spin the narrative of judicial supremacy.
(Not that I understood Marbury itself when I read it. Paulsen’s the expert, and his writing seemed clear and logical to me. I figure he’s right until/unless I learn better.)