With the recent announcement of United States Supreme Court Justice Stephen Breyer’s retirement and the nomination of Judge Ketanji Brown Jackson to the Supreme Court, there is a renewed attention on the ideological make-up of the court. Breyer’s retirement does not greatly change the composition of the Supreme Court—as it will still remain tilted in the conservatives’ favor by a margin of six to three. On the left, some are taking Breyer’s retirement as a victory. It will allow for the appointment of a young liberal justice who could potentially remain on the bench for decades, and it clears the way for President Joe Biden to appoint the first Black woman to the Supreme Court. Even more pressing, however, is the opportunity to reevaluate the sources of power that fuel a Supreme Court determined to steer the country sharply to the right.
Breyer’s retirement presents a unique opportunity to rethink the role of the Supreme Court in the law-reviewing process. Rather than continuing to support a system of government that gives the Supreme Court the power of judicial review, Congress should reduce the ability of the court to overturn democratically passed legislation by employing Article III of the Constitution. The Constitution empowers Congress to make exceptions to the Supreme Court’s appellate jurisdiction, and Congress should exercise this power when major legislation that is widely supported would be in danger of being overturned by the Supreme Court. This procedure of jurisdiction stripping would effectively prevent the Court from stepping in and intervening in the democratic legislative process.
In the status quo, the Supreme Court holds a great deal of power. With the power of judicial review, the court is able to overturn decisions made by elected legislatures—both at the state and federal level—which has the potential to force drastic shifts in American government and political operations. Such shifts have impacted issues including free speech, reproductive freedom, campaign finance, and countless others. It is worth reflecting on whether the power to make the final say on any issue should be held by nine unelected government officials who are, more often than not, selected for their political leanings. We have become accustomed to the notion that the immense power of the Supreme Court is sacred, but reducing this power is not an unreasonable or fringe viewpoint. Judicial review is not mentioned anywhere in the U.S. Constitution, and it has been controversial throughout American history, sparking condemnation from figures such as Thomas Jefferson, Abraham Lincoln, and Franklin Delano Roosevelt. These presidents, alongside several others throughout U.S. history, viewed the Supreme Court’s ability to override federal and state legislation as well as executive actions as a hindrance to their ability to pass a legislative agenda that they believed represented the will of the people.
Other democracies around the world do not have systems of judicial review. In the United Kingdom, the court functions only as a court of final appeal and does not have the power to overturn legislation. Our neighbors to the north in Canada have a notwithstanding clause that allows the government to preemptively protect a law before it is reviewed in court. It’s worth noting that these countries are still functioning democracies that protect minority rights through legislative avenues instead. The United States is unique in its holistic embrace of a system of judicial review. A strong Supreme Court is not a prerequisite to a functioning and welcoming democracy—it may actually be an obstacle.
One of the most common objections to scaling back judicial review is the claim that an unelected Supreme Court is key to protecting the rights of the minority from the popular majority. It is true that the Supreme Court has intervened in favor of minority rights in important decisions, such as Brown v. Board of Education. But while this decision is certainly a landmark, it is also an outlier in the court’s history. For every time the Supreme Court has ruled in favor of marginalized groups, there are a slew of other decisions that are racist, discriminatory, or anti-democratic. For example, in just this past term, the Supreme Court acted to reduce voting rights and labor rights, and it is expected to overturn or significantly weaken Roe v. Wade this term.
Now that the Supreme Court is more conservative than at any time since the 1930s, the risk of nine unelected judges overturning minority rights is even higher. Judicial review has served as a function of the Supreme Court even before it was formally articulated in Marbury v. Madison, but it is not written in the Constitution. This power of the Supreme Court is sourced from the Marshall Court’s ruling and the failure of limited political attempts to remove it. Therefore, to reduce the power of the Supreme Court would be within the bounds of the Constitution and Congressional action.
In a country where 59 percent of adults support abortion rights, 63 percent believe the government has a responsibility to provide health care for all, and 65 percent support greater government action to fight climate change, an omnipotent Supreme Court with a 6–3 conservative majority is clearly undemocratic and unacceptable.
The United States should reform the Supreme Court and pursue a model that is more in line with protecting democracy and the prevailing norms of other democracies around the world. Rather than allowing the Supreme Court to have the final say on whether a law can remain in place, the U.S. should adopt a judicial advisory role that can review legislation and issue recommendations, but no longer has the power to strike down democratically passed laws. In contrast with the Supreme Court, Congress actually has the power to strip the Supreme Court of its jurisdiction over particular cases under Article III, section 2, clause 2. Congress can create “exceptions” as to what falls under the Supreme Court’s jurisdiction.
Utilizing Congress’s constitutional powers to reduce the Supreme Court’s jurisdiction would align the United States with the power balance system of the U.K., New Zealand, or the Netherlands. Doing so would constitute a long-overdue correction to a huge power imbalance in our political system. Rather than hoping more restrained judges are appointed in the future, jurisdiction stripping would also ensure that democratically passed legislation remains in effect and that the progressive reforms favored by the majority of the public are durable, not in constant danger of being overturned by an unelected, unrepresentative body.
Featured Graphic by Annie Corrigan/ Heights Staff