Should Democrats retake the White House in 2028 and have majorities in both chambers of Congress, one legal expert is arguing there are numerous ways the six-member conservative majority on the Supreme Court of the United States (SCOTUS) could be brought to heel.
In a Monday essay for Slate, legal writer and attorney Mark Joseph Stern directly addressed a reader's concern that no matter what laws Democrats may try to pass under a potential new Democratic majority government, the Supreme Court could simply strike those laws down. Stern countered that there are several ways to re-establish Congress' powers and prevent SCOTUS from acting as an unelected super-legislature.
First, Stern argued that Congress should immediately grant statehood to both Puerto Rico and Washington D.C. as part of a "suite of structural reforms." He argued this was a necessary step to take in order to make sure that sparsely populated conservative states like South Dakota and Wyoming aren't over-represented in Congress (both territories have already passed statehood resolutions, meaning all Congress needs to do is pass a bill to admit them).
"Remember, the senators who voted to confirm Brett Kavanaugh to the Supreme Court represented fewer people than the senators who voted to oppose him," Stern wrote. "That is a huge structural problem that Congress can fix."
Second, Stern proposed that Congress pass a law that would require the Supreme Court to have a 7-2 supermajority to strike down any legislation passed by Congress and signed into law by the president. He noted that the Nebraska and North Dakota state constitutions already have amendments requiring a supreme court supermajority in order to toss out any laws, and called on a potential future Democratic government to "put it in there that the law cannot be struck down unless seven justices agree that it’s unconstitutional."
Stern also advocated for imposing a strict time limit on the judicial review process, calling the Supreme Court to no longer be able to evaluate the constitutionality of any new laws more than one calendar year after their passage. He observed that the Supreme Court's 2012 review of the Affordable Care Act took place after Democrats had already lost their majority in the House of Representatives in 2010, and that a one-year limit would mean that Congress' partisan makeup would still be the same if the Court threw out any laws passed by that Congress and lawmakers wanted to try passing the law again.
The Slate author described these proposed reforms as a "good-faith effort by Democrats to recalibrate the balance of power by reestablishing Congress’ primacy and diminishing the Supreme Court’s untouchable supremacy." However, he allowed for the possibility that these reforms may fall short. In that event, he called on Democrats to "add four seats" and pack the Supreme Court with new Democratic appointees.
"The current Republican justices have already shredded adherence to precedent. A future liberal majority should say no to unilateral disarmament and apply the same rules," Stern wrote. "That is how Democrats put the court back in its place: by undoing its attacks on democracy and restoring the constitutional settlement the Roberts court has spent years dismantling."
Click here to read Stern's full article in Slate (subscription required).
