Wisconsin’s great progressive senator Robert M. LaFolette grew so frustrated with the conservative-dominated Supreme Court that he called in his 1924 presidential campaign for a constitutional amendment to allow Congress to override judicial decisions and to provide for direct election of federal judges. LaFollette’s proposals went no further than his bid for the White House, but 90 years later frustration with the high court is so great that the call for reining in the courts is heard again.
The modern-day proposals were aired last week [July 22] in a Senate subcommittee hearing convened by the former Supreme Court law clerk, Ted Cruz, the Texas Republican senator running for president. Cruz opened the Senate Judiciary Oversight Subcommittee’s hearing with a 13-minute statement decrying what he called the court’s recent “descent into lawlessness.”
Cruz listed the various proposals: term limits; retention elections; override authority for the states, Congress, or both. Republicans called two conservatives as witnesses: Ed Whelan, the National Review commentator and former Scalia law clerk; and John Eastman, former dean of Chapman Law School. Democrats added the liberal Duke law professor Neil Siegel as a witness.
With that much intellectual firepower, the hearing was disappointing for anyone expecting serious discussion. Instead, the two-hour hearing consisted mostly of second-guessing the court’s recent decisions. Cruz and the conservative witnesses listed the court’s gay marriage and Obamacare decisions; the subcommittee’s ranking Democrat, Delaware’s Chris Coons, complained about Citizens United and Shelby County.
Coons tried to tamp down the sense of crisis. “We should reflect long and hard,” he said, before a fundamental change in the constitutional framework for the judiciary. But there was precious little reflection in the hearing.
Two twentieth-century constitutional amendments have fundamentally changed both Congress and the presidency. The Seventeenth gave us direct election of senators; the Twenty-Second limited the president to two terms. The Supreme Court has a larger role today than expected 225 years ago and, thus, perhaps needs some new checks on its power.
Term limits, the least intrusive of the changes under discussion, has the widest support. An ideologically diverse group of academics has been pushing one version of the idea for years, on the theory that regular turnover would benefit the court, the public, and the political process.
At the hearing, Siegel was warm to the idea, Whelan uncertain, and Eastman opposed. Eastman said term limits would just mean one activist judge in place of another. The academics would provide 18-year terms of active service, followed by lifetime tenure as “senior justices.” Some think the change could be accomplished by statute; others say a constitutional amendment would be necessary.
In his book The Case Against the Supreme Court, the liberal academic Erwin Chemerinsky, dean of the University of California-Irvine Law School, endorses the idea. He also includes one change not discussed at the hearing: some form of merit selection screening process for nominations to the court. He notes that the president could institute this change on his or her own.
The other two changes discussed at the hearing would deliberately inject politics into the Supreme Court’s place in the constitutional structure. “I support every effort to bring power back to we the people,” Cruz said. But neither he nor his witnesses addressed the potential difficulties.
If a majority of state legislatures or a supermajority of both chambers of Congress actually overruled a Supreme Court decision, the law would be left uncertain. If the marriage decision were overruled, “Question 2” in the case whether a state must recognize a same-sex marriage from another state would be unanswered. Nor would the law know the basis for allowing states to ban same-sex marriage.
In any event, advocates of the change likely would be disappointed with the result. The marriage decision would surely withstand an override effort today. In fact, it is quite likely that few if any of the court’s most controversial decisions would have been overruled through such a process: not the good ones, like Brown v. Board of Education, or the bad ones, like Dred Scott. And there is a process for overturning a Supreme Court decision: the Fourteenth Amendment overturned Dred Scott; the Sixteenth Amendment overturned the ruling that barred a federal income tax.
The override authority would politicize Supreme Court decisions more than they already are. Retention elections, adopted in the states to reduce political pressure on judges, would subject the Supreme Court instead to more. Siegel likened the idea to FDR’s proposal to “pack” the court; retention elections, he said, could “unpack” the court one justice at a time. The conservatives seemed open to the idea, but none addressed the effect of exposing justices to hundred-million-dollar election campaigns that would surely be financed by special interest groups of one stripe or another.
The proposals for Supreme Court restructuring have little chance of being adopted. But in post-decision remarks to a judicial conference, Justice Anthony M. Kennedy, author of the marriage decision, indicated that the justices appreciate the need to consider public reaction to controversial decisions.
“We draw down on a capital of trust,” Kennedy said, recalling the flag-burning decision. We spend that capital of trust, and we have to rebuild that capital. We have to put new deposits, new substance into this reservoir of trust."