How Kamala Harris can fight the renegade Supreme Court — and win

Published August 31, 2024 9:00AM (EDT)

Kamala Harris | US Supreme Court (Photo illustration by Salon/Getty Images)

“When we fight, we win!” Kamala Harris has made that the clarion call of her campaign. But if Democrats are to deliver on their promises once elected, they’ll have to fight judicial tyranny head on. It’s a fight they’ve avoided for decades, and we’ve almost lost our democracy as a result.

The Supreme Court's decision in Trump v. U.S., granting unlimited king-like powers to the president in the process of protecting Trump from prosecution, is a striking signpost, two years after the loss of reproductive freedom with the Dobbs decision made it vividly personal. But those are just two out of a, array of decisions in which unelected judges have overruled the will of the people or restricted the power of their elected representatives. Perhaps the biggest fight of all — to save future generations from the worst effects of the climate crisis — could easily be lost in the same way, as the Loper Bright decision has stripped the EPA of regulatory power and given judges the last word.

The bottom line is chilling: It’s one thing for Democrats to win power in November, and quite another to wield that power without being blocked by arbitrary, unelected MAGA courts — up to and including Chief Justice John Roberts and his colleagues. Even if Congress can pass the Women's Health Protection Act to undo the damage of Dobbs, there’s nothing to stop the Supreme Court from ruling it unconstitutional, based on whatever made-up theory the right-wing justices like.

Well, nothing except for the Constitution, that is: to be precise, Article III, Section 2, Clause 2, which explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction, as the court itself has acknowledged. In fact, the No Kings Act, introduced in early August to counteract the Trump v. U.S. decision, includes just such exception: if the law is challenged, such challenge will be heard in the federal circuit court in Washington, D.C., with no further appeal possible.

The same provision could and should be included in the Women's Health Protection Act and every other key piece of legislation advanced by a potential Democratic Congress in 2025, if they really want the legislation to go into effect. President Biden has failed to grasp the nature of the fight. We can only hope that a potential President Harris, given her experience fighting in the legal trenches, will have a firmer grasp of what the situation demands.

Just before the No Kings Act was announced, Biden unveiled his tortuous, doomed proposals for two court reforms — Supreme Court term limits and an actual code of ethics — along with a proposed constitutional amendment to overrule the presidential-immunity decision. That would get the job done, theoretically, but getting it passed is a pipe dream. No constitutional amendment has been adopted since 1992, and that one took more than 200 years to clear the bar. If Democrats are serious about ending presidential immunity, the No Kings Act is the way to go — and that will also require a direct rejection of the Supreme Court’s authority to undo it.

Biden’s long history in the Senate, and the spirit of collegiality he cultivated there, have made him ill-suited for such a fight. But Harris’ background — as a courtroom prosecutor, and then as an elected district attorney, attorney general and senator, in a state where the GOP has not been a serious contender for the last quarter-century — makes her far better prepared. Will she step up and take this on?

Joe Biden's long history in the Senate made him ill-suited for this fight. But Kamala Harris' background as a prosecutor, D.A. and attorney general makes her far better prepared.

There’s no way to know that right now, but there’s simply no avoiding this fight. The only important questions are about how, where and when it will be fought, and how it will it be understood: as a battle against judicial tyranny, or as a purely partisan political struggle that threatens judicial independence? That latter frame is how the media and political elites have defined it all along, and that supposedly high-minded has only served to enable and empower judicial tyranny.

That false frame was laid bare by Harvard Law professor Nicholas Bowie in his written testimony to Biden’s court-reform commission. Bowie provided both a historical and theoretical argument in support of “jurisdiction-stripping,” and set the stage for a paper by Ryan Doerfler and Samuel Moyn that clarifies how different reform proposals respond to different views of America’s runaway-judiciary problem.

Bowie makes clear that seeing the Supreme Court as a threat to democracy isn’t some wild new radical perspective. It can be found in Alexis de Tocqueville’s “Democracy in America,” where he declares that the “American aristocracy is at the lawyers’ bar and on the judges’ bench,” as reflected in the legal establishment's attitudes and its tension with American society as a whole. Bowie continues:

“The more you think about what happens in the United States,” Tocqueville continued, “the more you feel persuaded that in this country the body of jurists forms the most powerful and, so to speak, the sole counterweight of democracy.” Even though all literate Americans could read and understand their Constitution, American judges treated the document as inscrutable to all but themselves. Like “the priests of Egypt,” they considered themselves “the sole interpreter of an occult science.”

The pernicious consequences of this attitude took some time to fully emerge, but Bowie notes that since Tocqueville's time, "the Supreme Court has invalidated dozens of federal laws designed to expand political equality,” including a list of more than 20 cases he calls out by name, starting with the infamous Dred Scott decision of 1857 and running up through Shelby County v. Holder in 2013. He adds that the reaction to the Dred Scott decision “was so harsh that it helped precipitate the Civil War,” that Abraham Lincoln rejected the idea of judicial supremacy in his First Inaugural — stating that “If the policy of the Government upon vital questions ... is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers” — and that Congress passed a passed a law abolishing slavery west of the Mississippi in 1862, which was “precisely what the Court said Congress could not do.” Congress shortly thereafter granted full citizenship to Black people, in further defiance of Dred Scott, and then wrote it into the Constitution in the 14th Amendment.

Of course the court did not back away from this fight altogether, and Bowie recounts how it continued to attack civil rights protections in a manner strikingly similar to the ways conservatives have undermined civil rights and voting rights protections in the modern era. He also notes how the Supreme Court’s attacks on Black people’s rights facilitated violent, even deadly attacks on Black bodies. The court was, in effect, an enabler of racist terrorism, undermining democracy in the South and elsewhere. A whole train of abusive court rulings paved the way to the “separate but equal” ruling in Plessy v. Ferguson in 1896.

That history might be better known, Bowie argues, if not for the legacy of Brown v. Board of Education, but that was hardly the end of the story. Brown did not overturn the will of Congress, and in fact “enforced the Ku Klux Klan Act of 1871, one of the federal laws the Supreme Court had earlier gutted.” What’s more, it’s simply untrue that Brown ended segregation. That only happened after Congress enacted the Civil Rights Act of 1964 and the Voting Rights Act of 1965, both of which contradicted earlier Supreme Court decisions. Only a few years later, with Richard Nixon’s four Supreme Court nominees in the early 1970s, another judicial rollback of racial equality began, the one that continues to this day.

The history Bowie recounts dovetails well with Joshua Douglas’ recent book “The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights” (Salon interview here). The lesson of history, as opposed to the myth, could hardly be clearer: On balance, the Supreme Court is not a protector of Black people’s rights but an active enemy, and also an opponent of Congress’ efforts to protect them.

It’s crucial to counter the widely-shared assumption that the Supreme Court is a reliable protector of minority rights in order to get past the idea that any attempt to curb its power would endanger them. The case for disempowering the court is given a crisp analytical framework in the paper mentioned above, which is literally called "Democratizing the Supreme Court." I reached out by email to co-author Ryan Doerfler, a Harvard Law professor, and asked him to clarify its key points in non-technical terms. One way to see the problem, he began, is that the Supreme Court is suffering a serious legitimacy crisis: 

On this telling, the morally and legally outrageous decisions of this set of conservative justices, coupled with the egregious ethical lapses of some of them, have caused the American public mistrust an essential and generally admirable institution. So understood, the solution to the problem posed by this court is to restore it to its former position as a trusted nonpartisan institution outside the realm of ordinary politics.

The lesson of history, as opposed to the myth, could hardly be clearer: On balance, the Supreme Court is not a protector of Black people’s rights but an active enemy.

This is the view favored by establishment voices in politics, the media and academia, who often describe themselves as “institutionalists” and are reluctant to disturb existing institutions to start with. If they are ultimately convinced that something must be done, it should be aimed at getting those institutions to work properly again, rather than addressing the underlying causes that might call for more significant changes.

There’s “another way to look at the current court,” Doerfler continued, “as an especially egregious example of a generally illegitimate institution, one that has over decades if not centuries usurped the decision-making authority of democratically elected officials”:

From reproductive freedom to labor rights to the environment, the Supreme Court has claimed for itself ultimate authority over national policy, a claim inconsistent with even the thinnest notions of democracy. The solution is not to return to an imagined golden age during which the Court made its decisions in a ‘non-partisan’ manner, but rather to reclaim that authority for the people.

At least the “legitimization” frame, the first one mentioned above, is  being discussed, although it’s still not widely embraced among the punditocracy. That second, more progressive frame has gotten less attention, and I asked Doerfler why it deserves to be taken more seriously. The first reason, he said,

is that democracy is valuable in itself, and that we as a people should be offended by the idea of our nation’s most important decisions being effectively removed from the political realm. Whatever one’s views on any of the issues I mention, Supreme Court justices have no legitimate claim, morally, epistemically or legally, to having any say, let alone the final say, on such things.

Second, for progressives specifically, the Supreme Court is not just today but historically a reactionary institution. The Supreme Court’s track record concerning federal legislation especially is abominable, from Dred Scott to Hammer v. Dagenhart to Citizens United. So not only does the Supreme Court have no legitimate claim to the decisions it makes, but the decisions it makes have systematically harmed our society’s most vulnerable, least affluent populations.

 Next I asked Doerfler to elaborate on the different types of reform described in the paper: “personnel” reforms and “disempowering” reforms, and how they relate to our understanding of the fundamental problem.

Personnel reforms are "intended to change who sits on the court and, in turn, how the court’s power is wielded,” he explained:

Expanding the court to add progressive justices, for example, would make the court more likely to issue progressive decisions. Similarly, imposing term limits would help to ensure that the ideological makeup of the court more closely tracked the outcomes of presidential elections, avoiding situations like the one we are in now, where one president might about three justices in a single four-year term, and another one or zero justices.

Importantly, though, none of these reforms would alter in any way the power the Supreme Court enjoys as an institution. The court would continue to have the final say on, say, firearm regulation, even if the court were expanded or term limits were imposed on individual justices.

In that scenario, the fundamental question of judicial tyranny is off the table. A more kindly tyrant is the best we can hope for. “Disempowering reforms,” on the other hand, would “reduce or eliminate the power the Supreme Court enjoys, making it more difficult or even impossible, for the court to weigh in on whether to impose some firearm regulation, for example. Technically speaking, one could bring this about by outright stripping the courts of jurisdiction over challenges to such regulations, or by imposing a supermajority requirement, such that the Supreme Court could only invalidate such a law by a vote of 6-3 or 7-2 or 9-0.”

"Whatever one’s views on any [political] issues ... Supreme Court justices have no legitimate claim, morally, epistemically or legally, to having any say, let alone the final say, on such things."

While “personnel reforms” are meant “to restore ‘balance’ to the court and in that sense return it to its place ‘above politics,’” Doerfler said, "disempowering reforms" are meant to address the problem of "being governed by philosopher kings," which cannot entirely be solved by making them less excessively "partisan."

While jurisdiction-stripping might sound radical in today’s political environment, Doerfler argues that it's actually on a firmer legal and constitutional footing than more moderate-sounding proposals such as term limits:

Legally speaking, jurisdiction stripping is contemplated explicitly by Article III of the Constitution, which says that, except for disputes involving ambassadors or between states or things like that, Congress can make “exceptions” to the Supreme Court’s jurisdiction. In that sense, the constitutional authority for stripping the court of jurisdiction over, for instance, constitutional challenges to the Women’s Health Protection Act or the PRO Act is about as clear as it gets. By contrast, term limits specifically are at least vulnerable to constitutional objection insofar as Article III gives federal judges life tenure and salary protection.

I asked next about other disempowering reforms, such as requiring a supermajority to rule a congressional act unconstitutional, or giving Congress the power to overrule Supreme Court decisions with a supermajority vote of its own. Doerfler focused on the degrees of disempowerment, “from total to partial”:

Stripping courts of jurisdiction over certain cases takes them out of the equation entirely. A supermajority requirement, by contrast, allows courts to intervene, but only in cases in which there is substantial judicial consensus. To the extent you think it is important for courts to limit Congress in extreme cases, that might seem more attractive. Even less interventionist, a legislative override mechanism would allow Congress to negate a Supreme Court decision once it has been made (the proposed No Kings Act, provides an example).

Legislative override is “a comparatively modest proposal,” Doerfler continued, which is present, for instance, in the Canadian legal system. But such a mechanism is only useful if “both chambers of Congress and the president disagree with the Supreme Court” in a given moment, “which makes it difficult to use with any regularity.”

Parliamentary systems, such as those found in Canada, Britain and most other Western democracies, generally have much clearer democratic accountability, which helps explain why they’re so common around the world while our strange version of democracy is nearly unique, as Maxwell Stearns argues in “Parliamentary America” (Salon interview here).

Such disempowering reforms, Doerfler suggests, might actually be less destabilizing than personnel reforms. Unlike court expansion or “court packing,” they wouldn't automatically incentivize escalating partisan warfare:

It is less that jurisdiction stripping would not set off tit-for-tat retaliation (e.g., Democrats stripping jurisdiction over environmental legislation, conservatives doing so over legislation funding religious schools) than that such a “spiral” would be virtuous rather than vicious, in the sense that it would mean less and less national policy would be determined by the judiciary.

That kind of back and forth, in other words, would strengthen the connection between voting and political outcomes, making the political system more responsive to voters rather than the opposite. Our existing system has an abundance of veto points that make government problem-solving more difficult, an important contributing factor in public distrust of government. Removing the courts as an arbitrary, after-the-fact veto point would improve that situation, meaning that bad decisions can be corrected at the ballot box in a straightforward fashion that any citizen can understand.

Doerfler is not opposed to court expansion, in fact, and views it as a likely “prerequisite to disempowering the court, in that adding progressive justices … would substantially reduce the likelihood of the court spuriously declaring [that] jurisdiction-stripping legislation [is] unconstitutional. In that sense, I see court expansion and disempowering reforms as complements rather than alternatives.” Kamala Harris’ proposal to write the protections of Roe v. Wade into federal law could offer a test case:

One of the political virtues of jurisdiction-stripping is that it lends itself to piecemeal implementation. While the problem of an anti-democratic Supreme Court might seem abstract, the threat of a court invalidating [a national reproductive rights law] is straightforward. Stripping courts of jurisdiction in cases like that is easier to motivate. In virtually every area that matters to Democrats ... the Supreme Court is a significant threat and so using tools like jurisdiction stripping is appropriate and necessary. Anything that would excite progressives the Supreme Court is likely to obstruct in whole or in part, unless Congress and the president are willing to fight back.

One way to make court expansion work without inviting the above-mentioned escalating partisan warfare would be, as Elie Mystal argues, to make “the Supreme Court operate like the Circuit Courts of Appeal. … A 19-member Supreme Court, hearing most cases in panels and subject to ethical standards, would look, feel, and act more like every other federal court.”

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"It is less that jurisdiction stripping would not set off tit-for-tat retaliation [between Democrats and Republicans] than that such a 'spiral' would be virtuous rather than vicious, in the sense that it would mean less and less national policy would be determined by the judiciary."

Such a panel system would have the effect of restraining the tendency to rule too broadly, since the broader the ruling, the more likely it is to struck down by another panel in the future. There would be a strong incentive for narrower, more rigorously reasoned opinions that would be more likely to survive. In effect, Supreme Court justices would be checking each other’s power to tend toward judicial tyranny.

A combined set of reforms — a court with panels, ethics and term limits that requires a supermajority to declare a law unconstitutional and is specifically limited in its jurisdiction — would give us a dramatically different Supreme Court than the one we have today. It would be much more like other courts found around the country and all over the world, and that would make democracy more robust: Political leaders at all levels and of all parties would be more clearly accountable for fulfilling their promises without the dark shadow of judicial tyranny hanging over them.

The American public deeply dislikes and distrusts the Supreme Court, and justifiably so. But the challenge is not merely to determine what a better Supreme Court would look like, but to clear a pathway for real change. Fighting for judicial reform and jurisdiction-stripping, right now, can begin to open that path.

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Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News and columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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