Social conservatives suddenly have reason to hope that the Supreme Court may soon be more favorable to their values and understanding of the Constitution than it has been in some time. The president-elect’s published list of potential Court nominees contains excellent candidates, and he should be encouraged not to deviate from that list. Nevertheless, in addition to nominating better justices, there are more options to consider when it comes to the Court’s long-term health.
The Court has a long history of exercising its power of judicial review inappropriately. The Court’s 1973 decision in Roe v. Wade, in which it struck down state laws banning abortion, remains a prominent symbol of the damage that judicial activism by the Court can do.
Justices dissenting from the Court’s abortion jurisprudence have starkly criticized the constitutional baselessness of Roe and the lengthy and convoluted abortion jurisprudence produced by the Court in its wake. Justice Byron White, in his dissent in Roe's companion case of Doe v. Bolton, wrote that he found “nothing in the language or history of the Constitution to support the Court’s judgment” in Roe. He lamented what he termed “an exercise of raw judicial power.” Justice Clarence Thomas wrote in a concurring opinion in Gonzales v. Carhart that “the Court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.”
It’s not just abortion. The June 2015 decision in Obergefell v. Hodges, in which a five-justice majority invalidated state laws defining marriage as the union of a man and a woman, brought the Court’s abuses into even starker relief. Each of the four dissenting justices in Obergefell wrote an opinion, and what they said was illuminating. Justice Alito wrote that Obergefell “shows that decades of attempts to restrain this Court’s abuse of its authority have failed.” He lamented that the majority’s judicial philosophy reflects “a deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” The late Justice Antonin Scalia wrote even more forcefully of the majority’s abuse of power. “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
What can be done to rein in the Court and bring it back in line with its proper role in our constitutional order? If Justice Alito is right, and the Court’s record reflects a “perhaps irremediable corruption” of our legal culture, nominating better justices may not be enough, though it certainly is a start.
Six Ways of Curbing the Supreme Court
Public Discourse contributor Michael Stokes Paulsen addresses this topic in a recent journal article, “Checking the Court,” published in the New York University Journal of Law & Liberty. Paulsen is the Distinguished University Chair and Professor of Law at the University of St. Thomas, and he previously worked as Attorney-Advisor in the Department of Justice’s Office of Legal Counsel.
Paulsen’s starting point is that the dissenters in Obergefell were correct—the decision was an exercise of will rather than constitutional judgment. He assumes that the grim prognostications of Justices Alito and Scalia about the legal culture are accurate.
In his famous discussion of the judiciary in Federalist No. 78, Alexander Hamilton writes that the judiciary “may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” While Hamilton simply observed a fact about our constitutional structure—that the executive branch has a responsibility to uphold the Constitution and the ability to decline to carry out judicial decisions that are unconstitutional—Scalia in his dissent went further and noted that the judiciary depends not only on the executive arm but also on the states for the efficacy of its judgments.
The questions Paulsen is interested in exploring, then, are: What options are available to the executive arm and the states to check the Court, and what can the legislature do to incline the Court toward a proper execution of its constitutional role? Paulsen explores six courses of action that might effectively curb the Court’s abuse of judicial authority.
The first option is the most traditional way of shaping the Court: the judicial appointment and confirmation process. Paulsen argues for the propriety, in principle, of the president and Congress subjecting potential judges to sound ideological litmus tests.
To argue otherwise—to argue that candidates for the federal judiciary must be immune from evaluation of their judicial interpretive methodology and interpretations of specific provisions of the Constitution—is, Paulsen writes, to bend the knee to a mistaken notion of judicial independence.
Judicial independence demands that judges be free from outside interference in deciding the cases before them. But this independence is not infringed when candidates for the federal judiciary being considered by the president for nomination and evaluated by the Senate for confirmation are nominated and accepted or rejected on the grounds of judicial ideology.
A second course of action involves “the power of Congress to control, in substantial measure, the jurisdiction of the Supreme Court and of lower federal courts.” The Constitution grants the Supreme Court original jurisdiction in cases involving “ambassadors, other public ministers and consuls, and those in which a state shall be a party,” but all other cases properly within the sphere of the federal judicial power are under the Court’s appellate jurisdiction, subject to any exceptions and regulations that Congress wishes to make.
Paulsen argues that it is constitutionally within the sphere of Congress’s power to “make whatever exceptions—deletions, limitations, or qualifications—it wants, as carve-outs from the Supreme Court’s appellate jurisdiction,” jurisdiction which by default would extend to everything listed in Article III, Section 2 that is not included in the Court’s original jurisdiction.
What might this look like in practice? Paulsen argues that while jurisdiction-stripping (removing certain kinds of cases from the Court’s appellate jurisdiction) is constitutional, it may not be particularly effective. It may serve as a deterrent, but does nothing to redress past harms.
Paulsen argues that jurisdiction-loading might be more effective. Congress could impose “mandatory appellate jurisdiction—not just certiorari jurisdiction, but mandatory plenary appellate jurisdiction—for all federal question cases decided by the U.S. Courts of Appeals and by state highest courts.” The purpose of such a maneuver would be to “keep the justices out of trouble by keeping them busy with routine case-deciding work.”
Sizing up the Court
Third, Paulsen considers “the power of Congress to structure the Court itself, by manipulating its size.” The Constitution says nothing about the size of the Supreme Court, only that the Court must exist.
The Judiciary Act of 1789 established the Supreme Court with six justices. That number increased to seven in 1807, and to nine in 1837. In 1863, the size of the Court was set at 10, but that number was reduced to seven in 1866. Finally, the Judiciary Act of 1869 established the Court’s size at nine, where it has remained since.
Paulsen argues that altering the size of the Court is a non-controversial, if not recently actualized, constitutional power of Congress. Court-packing (increasing the size of the Court), Paulsen writes, is not a particularly good idea, as “it diminishes the Court’s institutional checking power in a troubling way” and constitutes a sort of “nuclear” option by encouraging “retaliatory use of such nuclear weaponry, on increasingly greater scales.”
Unpacking the Court has more merit, Paulsen argues, “as a way of checking unwanted judicial appointments at least for a period of time.” Justice Scalia’s seat remains vacant, and several more may become vacant during the next president’s tenure. Reducing the size of the Court to six or seven justices might serve to de-politicize the Court to some extent by avoiding, for a time, drawn-out fights over appointments and confirmation.
As Paulsen notes in a recent article for National Review, “A statute shrinking the Court is an important symbolic reminder of Congress’s various powers to check and balance an overactive federal judiciary.” Given the make-up of the incoming legislative and executive branches in January, however, an effort to reduce the size of the Court by statute is unlikely.
A fourth option is impeachment. In contrast to the previous three options, impeachment is a back-end and more precise check on the Court. It punishes a specific wrongdoer for specific abuses.
Paulsen admits that impeachment of justices has not been a serious part of our tradition since the early days of the nation, but nevertheless maintains, “where judges willfully violate the Constitution . . . Congress may judge such literally willful conduct to be an abuse of office and a violation of the judges’ oath, warranting impeachment and removal.”
To merit impeachment, Paulsen asserts, a judge or justice would have to be deemed by Congress to have displayed “a sufficiently severe pattern or practice of constitutionally faithless judicial decision making” in violation of his oath of fidelity to the Constitution as the supreme law of the land.
Statutory Prescription of Judicial Rule Making
Fifth, Paulsen argues for “the use of Congress’s general legislative powers … to control, to the extent possible thereby, the Court, by steering its exercise of judicial power in constitutionally proper directions through the vehicle of a statutory prescription of proper interpretive methodology.”
This is a precise tool—it would operate on the judiciary in daily practice. The general idea is that the Necessary and Proper Clause of Article I encompasses the ability of Congress to pass laws governing judicial rule-making as a means of “carrying into execution the ‘judicial Power’ under Article III of the Constitution.”
This avenue would permit Congress to enshrine originalism as the proper method for federal judges to decide constitutional questions—it “may prescribe original-public-meaning textualism as the interpretive-methodological rule of decision for the judiciary in considering issues of federal constitutional, statutory, or treaty law,” Paulsen writes.
Refusing to Give Force to Judicial Decisions
Finally, and most controversially, comes Paulsen’s sixth item: “the power to decline to abide by or enforce the Court’s willful, lawless judgements.” While the executive most clearly possesses this power, Paulsen argues that not only the president but also officers of state governments and lower federal and state court judges have the authority to refuse to enforce or follow the precedent of an unconstitutional Supreme Court decision. The legislature is also free to enact laws or attempt amendments to challenge Supreme Court precedents.
The bottom line, as Paulsen sees it, is that a “lawless Supreme Court judgment and opinion is not law, and should not be regarded as such by other judges, who possess independent constitutional authority and the independent duty to decide matters of federal law faithfully to the U.S. Constitution.”
The Constitution is the supreme law of the land, and the legislative and executive branches of the federal government as well as the officials of state governments are bound to uphold the Constitution. Deference ought to be given to Supreme Court precedents as a general rule, but not necessarily when doing so would clearly lead one to violate one’s oath to preserve and protect the Constitution.
While resistance of this kind is rare, and constitutes another “nuclear” option, refusal to enforce an unconstitutional judgment of the Court represents perhaps the most precise and potent way of checking the Court’s abuse of power.
In contemplating what actions to take, one must weigh the prudence of the proposals Paulsen identifies—and the likelihood of their future abuse. Congress, the executive branch, and the states have more tools at hand to corral the Court than most people realize; the problem has been that they lack the will to do so.
While the prospects of substantial gains on the abortion issue in the near future are encouraging, we should not lose sight of the importance of the long-term health of the Court, and the damage that it has done to its reputation in the past. There is reason to hope that some of the Court’s past activism may be reversed, but the make-up of the Court nevertheless remains a pendulum that can swing from side to side in the political winds. If we are serious about finding long-term solutions to the problem of the Court’s harmful judicial activism in the interest of shoring up an important institution of our government, more thought needs to be given to the types of measures Paulsen identifies.
Tim Bradley is a research associate at the Charlotte Lozier Institute. The opinions expressed here are his own and do not necessarily reflect the views of the institute.