Steve August 20, 2020
a-constitutional-weapon-for-biden-to-vanquish-trump’s-army-of-judges

We
are now less than 90 days away from an election that President Tweety McTreason is openly
attempting to steal
. From that vantage, it may seem prematurebordering
on presumptuous
for Democrats to start worrying now about what will happen if Joe Biden wins. But Democrats should
worry: Even if voters give Democrats control of Congress and the White House and
even if Joe Biden manages to enact the deep reforms needed to stave off
economic catastrophe, come to grips with a
public health emergency, and begin to root out the rot and corruption in our
government, it may be all for naught. A conservative federal judiciary,
freshly stocked with over 200
right-wing activist Trump judges
,
lies in wait. 

Biden has offered ambitious plans to pursue a Second New Deal if elected. If he’s serious, he needs to plan for the near certainty that John Roberts’s Supreme Court will resist in much the
same way that a conservative Court undermined Franklin Roosevelt’s original
version. 
Some have recommended court-packing, but there’s a better and perfectly constitutional solution that’s being largely ignored on the left: Congress can strip federal courts of their broad power.

The Roberts Court could—and, if left to their own devices, likely
will—gin up conservative interpretations of the Constitution for the purpose of
killing off as much of the Democratic reform agenda as possible. There are a
number of plausible scenarios.


Imagine
first that Democrats respond to America’s insane levels of inequality with a
wealth tax. That move might be very popular, considering that millions of
Americans have been thrown out of work since March while 
America’s billionaires have gained
over $400 billion in wealth
.
But the Supreme Court would likely strike this down on the grounds that it
fails to satisfy the Constitution’s requirement in
Article I, section 9, clause 4 that so-called “direct” taxes must
be apportioned among the states by population—a standard basically impossible
for a wealth tax to meet, as there are so many more rich people per capita in
New York than in Mississippi.

Next,
imagine that Democrats try to address corporate influence-peddling in our
government by enacting limits on corporate contributions to political
campaigns. The Supreme Court would almost certainly eviscerate that law as well,
holding that it violates the risible interpretation of the First Amendment in
Citizens
United v. Federal Election Commission
 in which a conservative 5-4 majority held that corporations’
campaign expenditures were as fully protected as any other form of political
speech.

Finally,
and perhaps most pressingly, consider the possibility that Democrats will attempt
to head off a climate catastrophe by passing legislation that sets limits on
carbon dioxide emissions while providing the Environmental Protection Agency with expansive new powers to write rules
that hit Congress’s target at the lowest cost. The Supreme Court might dismantle
this law too, holding that the Constitution prohibits Congress from delegating
its legislative power to administrative agencies.

You
won’t find any such rule in the text of the Constitution. But the prospect of
conservative judges wielding a non-delegation scythe to mow down entire fields
of federal regulation is nonetheless
distressingly real. Conservatives have been agitating
for years to cripple the federal government’s power to regulate business by requiring
Congress to write into the law every jot and tittle of government regulations rather than, as has been the norm since the 1930s, legislating in broad strokes
and relying on experts at administrative agencies like the EPA to fill in the
details.

In
the 2019 case 
Gundy v. United States, a
dissenting opinion penned by Justice Gorsuch and joined by three other conservative
justices argued openly for reviving the non-delegation doctrine. Those four
conservatives have now been joined on the Court by Brett Kavanaugh. Shortly
after his confirmation, Kavanaugh wrote a short opinion concurring in the
Court’s refusal to hear a case that was basically a replay of
Gundy but made it clear that as soon as
the right case came along, 
he was ready to provide the fifth
vote needed to bring non-delegation back from the dead
: “Justice
Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine,”
Kavanaugh wrote, “may warrant further consideration in future cases.”

Republicans have built their recent political
strategy around stocking the federal bench with right-wing judges for a reason:
Through these means, the party can effectively stay in power even if it can’t win elections. And
on that last point, the GOP knows that
their
time is running out
, that demographics are inexorably
reducing the voting power of the GOP’s coalition of older, less-educated rural
and exurban whites. The furious energy with which Trump, Mitch McConnell, and
the
Federalist Society
have worked to elevate partisan
conservatives to the federal bench—by far the most consequential achievement of
Trump’s presidency—is all about frustrating the ability of the Democrats to do
much with power once they win it back.

This is why the Democrats need to be
thinking ahead about how to tame the conservative Supreme Court. Recent
proposals have focused mostly on shifting the Court’s composition through
court-packing
and the introduction of
judicial
term limits
. But both of those strategies raise
concerns. Court-packing—that
is, creating more seats on the Supreme Court and filling them with liberal
jurists—is unabashedly partisan and certain to spark enormous opposition. But even
if Democrats manage to create new seats and fill them, court-packing would only
reinforce the Court’s role as a political actor, which is not what anyone should
want.

Limiting
the terms of Supreme Court justices might be the ideal solution. It would, however, require
a constitutional amendment, though there have been creative efforts to work
around that by suggesting that justices get rotated off the Supreme Court after
a term of years and onto one of the lower federal courts. But there is a more
serious problem with term limits: They may, counterintuitively, deepen courts’
politicization by casting even more explicitly the right to make Supreme Court
appointments as a prize awarded for electoral success.

There
is another way. And as it happens, it’s a deeper reform that the Constitution
specifically authorizes. Article III of the Constitution gives Congress
substantial power to
strip federal
courts’ jurisdiction: a power that can be employed to rein in politicized
courts and even to override judicial decisions, at least when courts are
standing in the way of change that a substantial and enduring political
coalition wants.

How
would jurisdiction-stripping work? Start with the source of Congress’s authority.
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 for approximately 99% of the Supreme Court’s total docket what
cases the Court has the power to hear. As I explain in this article, to be published in December in
the New York University Law Review, under its Article III authority, Congress
can remove the Supreme Court’s appellate jurisdiction over particular cases, or
particular issues, largely without constraint. 

Congress
also has the power to limit the jurisdiction of state courts to hear federal
questions, including constitutional claims. But on a practical level, it would
not matter much even if state courts still hear federal constitutional claims.
State courts lack both the authority to enjoin federal officials and the
practical institutional power to counter a determined federal government. 

The
implications of Congress’s Article III power are potentially profound. Congress’s
power over courts’ jurisdiction means that it can claim for itself authority to
interpret the Constitution in particular cases. What does that mean in
practice? A couple of examples might better illuminate how it might work.

Let’s
return first to the wealth tax. Imagine Congress enacts wealth tax legislation that
includes a provision stripping the federal courts of jurisdiction to review the
tax for consistency with the Constitution’s apportionment requirement. In
so doing, Congress would be advancing its own understanding of the meaning of
that part of the Constitution—the exact scope of the apportionment requirement
is in fact
subject to reasonable debate—and telling courts to stay out. If
voters disagree, either with the tax itself or with Congress’s decision to
limit judicial review of its constitutionality, they can discipline Congress by
giving their votes in the next election to candidates who oppose the tax, the
jurisdiction-stripping provision, or both. 

Congress
could protect campaign finance reform in the same way: that is, by enacting campaign
finance restrictions that are significantly more far-reaching than the Supreme
Court’s First Amendment jurisprudence would permit and including a provision removing
courts’ jurisdiction to hear challenges to the statute. Here, the stakes are
somewhat higher, as the Supreme Court has already weighed in on the issue. But
again, if either the restrictions themselves or Congress’s use of its Article
III power to shield them from hostile courts prove unpopular, Congress will
face discipline from voters, not judges. 

There
are, of course, reasons to hesitate. First among them is the power of
convention: We have traditionally acquiesced to an expansive role for the
federal courts, albeit mostly without thinking about the alternatives. But given
how badly the judiciary has been politicized, we should be asking whether we are
willing now to continue down the path of unqualified judicial supremacy. Even
before Tweety McTreason, the GOP had set its sights on partisan capture of the
federal courts. That enterprise accelerated enormously once Trump was elected,
and at this point, the Democrats will have to respond if they hope to enact the
deep reforms that the country needs.

But
the tit-for-tat of appointing liberal activists isn’t the answer; that just
leads to a continuing battle over judicial appointments. The better option is to
shrink the role of courts and stop permitting them to determine winners and
losers in so many of our political disputes. Reining in the role of courts is
the best way to kill the incentive that drives both parties to appoint
activists to the federal bench. It is also the best way to reduce the
Constitution’s excessive interference with democracy at the precise moment that
demographics make progressive change a winner at the ballot box.

It’s
important, finally, to grapple with the inevitability that, once established, Congress’s
power to rein in the courts through jurisdiction-stripping will be used—and
misused—by Republicans as well as by Democrats. Frankly, that downside seems
less concerning given how courts have largely stayed on the sidelines while
Trump and his Republican enablers have driven our country to the brink of
chaos. Courts
haven’t stopped Trump’s migrant “family
separation” policy. Courts haven’t yet forced Tweety McTreason or his underlings to
cooperate with Congress’s subpoenas and
likely won’t before the election. Nor are courts likely to stop
Tweety McTreason from undermining the postal service in an effort to cheat his way
to a win in November.

To
put it bluntly, we tend to overrate the role of federal courts in protecting us
from the possibility of bad things happening. And we tend to underrate how much
our long-running American tendency to turn our deepest political disagreements
into legal disputes drains the energy out of our democracy. The surest
protection in the long term is a citizenry that works both to strengthen
democracy and to leaven it with decency. 
We can’t sub-contract that job to judges, even to good ones—and
certainly not to the judiciary that Tweety McTreason has made.

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