Former US Attorney and Deputy Assistant Attorney General Harry Litman has created a bit of a stir in legal circles recently by pointing out that at least three “conservatives” on the US Supreme Court are embracing a Trumpy concept that the Court can go even further than it did in 2000 and essentially award the presidency to whomever they choose via a corrupt deal with Republicans in state legislatures.
In addition, multiple Trumpy Supreme Court justices have been supporting lower court policies that have ruled against the Biden Administration (in this case, with regard to continuing brutal Trump immigration/asylum policies) in ways that avoid actual formal arguments, decisions and dissents and, some legal scholars say, are at best outrageous and possibly even outright unconstitutional.
Meanwhile, several conservative-controlled states and various advocacy groups are not only asking the Court to blow up Roe v Wade but to even agree with Mike Pence’s attempt, when governor of Indiana, to create a system tracking women’s menstrual periods looking for pregnancies that might have been “illegally” terminated. (That effort led to a serious-but-humorous “Periods For Pence” movement with women tweeting or emailing Pence when their periods re-started so he could relax.)
The Court has, in many ways, become the most powerful branch of the federal government and they’re neither elected nor subject to any meaningful oversight from Congress, the president or We The People. This is both dangerous and wrong.
Back in 1803 in Marbury v Madison, the US Supreme Court took onto itself a power not given it by the Constitution: the ability to strike down or modify laws passed by Congress and signed by the President.
Thomas Jefferson was president that year and he flipped out. He bluntly expressed his concern to his old friend Judge Spencer Roane, the son-in-law of Patrick Henry and a justice of the Virginia Supreme Court:
If this opinion be sound,” Jefferson wrote, “then indeed is our Constitution a complete felo de se [a suicide pact]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation….
President Jefferson continued in full fury:
The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.
It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.
My construction of the Constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal….
A judiciary independent of a king or executive alone is a good thing; but independent of the will of the nation is a solecism [a blunder], at least in a republican government.
The blowback against the Supreme Court claiming they had the power and right to strike down or rewrite laws was so severe that they didn’t meaningfully touch that third-rail again until 1856, when Chief Justice Roger Taney thought he’d “solve the slavery problem in America once and for all” with his Dred Scott decision, striking down and modifying numerous US laws by ruling that Black people were “property” across the entire United States, slave or free.
President Abraham Lincoln refused to enforce the decision, saying, essentially, “That was terrible for poor Mister Scott and he’s going to have to go back to slavery, but I’m not going to apply this to any other people in America” (my words, not his). Many historians argue that this overreach by the Court in Dred Scott led us straight to the Civil War.
Nonetheless, it wasn’t until the early 20th century that the Court started tearing down or rewriting laws in really great numbers; today it’s almost all that they do.
This “judicial activism” in the 1950-1980 era led to a movement among conservatives to quote Article III, Section 2 of the Constitution, which explicitly says that Congress can override the Court when they do such things, or even prevent them from taking such actions in the first place:
“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Exceptions? Regulations? Congress can do that? Can Congress tell the Supreme Court what it can and can’t rule on? Really?
Former Stanford Law School Dean Larry Kramer wrote an entire book about judicial review (the doctrine that the Court can strike down or rewrite laws) titled The People Themselves. His conclusion, in my read, was a clear and possible yes (although he presented arguments against, too).
He got the title from a letter Jefferson wrote when asked who should decide what laws “are or are not constitutional” if the Court shouldn’t. Jefferson answered simply: “The people themselves.” (I also wrote a book about this, in part: The Hidden History of the Supreme Court and the Betrayal of America.)
After Brown v Board that mandated school integration in 1954, and Roe v Wade that decriminalized abortion in 1973, conservatives launched a movement to not only restrain the Supreme Court but even to try to pass laws reinstating racial segregation and re-criminalizing antiabortion by declaring, in the body of the laws themselves, that they constituted “exceptions” to the Supreme Court’s overview.
This process of writing “the Supreme Court may not rule on this law” into controversial legislation had been done many times in American history, but never in such a big way that it was tested by the Court itself. It’s called “court stripping” or “jurisdiction stripping.” And it has never been tested.
But the Reagan administration, determined to reverse racial integration and put a cork in the women’s movement, thought it might be worth a try.
The year 1981 was a big one for court- or jurisdiction-stripping. No fewer than 30 pieces of legislation were introduced into the U.S. House of Representatives by Republican congressmen (all men) that included court-stripping provisions. It was a huge topic of discussion and legal activity among Republicans in the first year of the new Reagan administration.
And a young lawyer working in Ronald Reagan’s Justice Department, an up-and-comer named John Roberts, was hot on the trail.
Way back in 1954, the Supreme Court ruled, in Brown v. Board, that states had to racially integrate their schools. Southern states promised “massive resistance” in defiance, and entire school districts were shut down; many Southern states opened private all-white “segregation academies” such as the one current Mississippi Senator Cindy Hyde-Smith famously attended and sent her daughter to.
Brown provoked a mini-industry among right-wing white racists in the 1950s and 1960s: Fred Koch’s beloved John Birch Society was putting up “Impeach [Supreme Court Chief Justice] Earl Warren” billboards across the nation and publishing articles and pamphlets tying civil rights activists to communism; hundreds of all-white private schools opened, many by religious figures like Bob Jones; and conservative scholars of the Supreme Court and the Constitution searched through old books and debates from the Founding Era to that day looking for rationales to overturn the decision.
Those two decades of the mid-50s to the end of the 70s, though, other than years of disruption to public education and a redoubled effort by conservatives to keep public schools funded with local property taxes (so that poor and/or Black schools would continue to turn out poorly educated students), didn’t succeed in turning the opposition to Brown v. Board or their hatred of Earl Warreninto any meaningful legislation or SCOTUS challenge.
But two decades later, in 1973, defying the Court became a much bigger business when the Court in Roe v. Wade ruled that women have the right, at least in the first trimester of pregnancy, to choose an abortion pretty much anywhere in the country, for any reason.
Conservative Republican men (and a vocal fringe of Catholics generally) went nuts. In response, Reagan brought together a constellation of conservative lawyers to try to change the face of America back to one where only white men had real political power.
Ted Olson, who later argued Bush v. Gore before the U.S. Supreme Court, led the Justice Department’s Office of Legal Counsel. As an assistant attorney general, Olson worked with counselor to the attorney general Ken Starr (appointed to that job in 1981), who was later (1989-1993) George H.W. Bush’s solicitor general.
Other new faces on their way up the conservative political ladder who Reagan hired into the White House to work against Brown and Roe included lawyers Samuel Alito and John Roberts.
Ken Starr tasked Roberts, a apparently staunchly antiabortion Catholic, with reviewing the entire history of the U.S. Supreme Court for cases that suggested a legislative or administrative way to overturn Roe v. Wade and Brown v. Board.
In response, Roberts wrote an extraordinary 27-page document that’s largely unknown, in the form of a memo on the letterhead of the Office of the Attorney General, to Ken Starr, signed by Roberts as special assistant to the attorney general. It is titled, “Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments.”
Roberts wrote that he had found “over twenty bills [then pending in Congress] which would divest the Supreme Court (and, in most instances, lower federal courts as well) of jurisdiction to hear certain types of controversies, ranging from school prayer and desegregation cases to abortion cases.”
What Roberts and his researchers discovered was substantial.
Court-stripping, as mentioned, is based on the Exceptions Clause of Article III, Section 2 of the Constitution, which stipulates that the courts’ powers exist “with such Exceptions, and under such Regulations as the Congress shall make.”
Roberts noted in his memo that “[t]he exceptions clause by its terms contains no limit… This clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block for those would read the clause in a more restricted fashion.”
My read of it is that Roberts was looking at the nuclear option against the Supreme Court: If Reagan could build a strong case for Congress passing a law against abortion or racial integration, and persuade Congress to use the Exceptions Clause to render the courts moot, this could be the magic bullet to restore racial segregation, recriminalize abortion and return America to its “traditional” pre-1950s values.
Roberts concluded with a 1968 comment from Senator Sam Ervin of North Carolina, one of the Senate’s most outspoken opponents of racial integration and abortion, and biggest supporters of apartheid South Africa.
Roberts wrote to Reagan, “As Senator Ervin noted during hearings on the exceptions clause, ‘I don’t believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said, which was that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress.’”
Roberts agreed: “[W]e are not considering a constitutional clause that is by its nature indeterminate and incapable of precise or fixed meaning, such as the due process clause or the prohibition on unreasonable searches and seizures.”
This was clearly the original intent, Roberts argued, because “the exceptions clause ‘was not debated’ by the Committee of Detail which drafted it or the whole Convention.”
Citing Federalist 81, Roberts wrote, “Hamilton noted that the clause would enable ‘the government to modify [appellate jurisdiction] in such a manner as will best answer the ends of public justice and security,’ and that appellate jurisdiction was ‘subject to any exceptions and regulations which may be thought advisable.’”
Section III of Roberts’ paper for Reagan on court-stripping dives deep into Supreme Court decisions to find rulings explicitly saying that Congress can regulate the federal courts and block the Supreme Court from ruling on particular issues.
Beginning with the 1869 decision Ex parte McCardle, Roberts wrote, “A unanimous Court upheld the power of Congress to divest the Supreme Court of jurisdiction. The Court clearly based its decision on Congress’ power under the exceptions clause. Chief Justice Chase began the opinion by recognizing that the appellate jurisdiction of the Court ‘is conferred “with such exceptions and under such regulations as Congress shall make.”’”
Quoting Chase again, Roberts added his own emphasis: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this Court is given by express words.”
He continued his historical exposé of court-stripping with another 1869 decision, Ex parte Yerger, and then United States v. Klein (1872), Wiscart v. Dauchy (1796), Durousseau v. United States (1810), Daniels v. Railroad (1865), and The Francis Wright (1881).
In The Francis Wright, Roberts found that Chief Justice Morrison R. Waite (whose court oversaw the infamous 1886 “corporate personhood” Santa Clara County v. Southern Pacific Railroad case) wrote for a unanimous court, quoting him as follows: “Not only may whole classes of cases be kept out of the jurisdiction altogether [because of congressional restrictions], but particular classes of questions may be subjected to re-examination and review, while others are not.”
Each case strengthened the idea that Congress could simply pass a law, without even needing a super-majority, that barred the Supreme Court from ruling on a set of issues like Reagan’s hot-button issues of school desegregation and abortion.
Moving toward late-19th-century decisions, Roberts quoted the court in Colorado Central Consolidated Mining Co. v. Turck (1893): “[I]t has been held in an uninterrupted series of decisions that this Court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject.”
Roberts, in his own voice, added, “Again, it bears emphasis that the basis for this theory is the implicit exercise by Congress of its exceptions power….”
Still building his case, Roberts jumped into 20th-century rulings, starting with National Mutual Insurance Co. v. Tidewater Transfer Co. (1948). Writing for the majority, Justice Felix Frankfurter noted in the decision, “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.”
About the 1944 Yakus v. United States case, Roberts wrote, “Justice Rutledge noted… that ‘Congress has plenary power to confer or withhold appellate jurisdiction.’”
Regarding Flast v. Cohen (1968), Roberts quoted from Justice William O. Douglas, who wrote, “[A]s respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Article III. See Ex parte McCardle.”
In Section IV of his memo, Roberts again covered the span from the framing of the Constitution to the time of his writing the memo, quoting another dozen or so cases that referenced, less directly, the power of Congress to exempt the Court from certain issues or decisions.
Roberts also noted that the original Judiciary Act of 1789 (which created the federal court system) also explicitly refers to Congress’ power of exception.
Roberts submitted his passionate report and a few months passed.
Ultimately, Reagan backed down, apparently deciding the political price would be greater than the chance for success. Roberts’ efforts were consigned to an obscure drawer/website in the Library of Congress (where I found it). But now, as this court repeatedly engages in overreach (particuarly on their so-called “shadow docket,” ruling with neither credit nor explanation), the conversation Roberts started is being revived.
A number of Senators and members of the Congressional Progressive Caucus have recently been discussing limiting the Court, while the Biden Administration has empaneled a group to examine specific “regulations” that could or should be imposed on it, ranging from changing its number of justices to require its members to abide by the federal code of judicial ethics (something from which the Court has exempted itself).
This Court has gone way over the line, from blowing up a Voting Rights Act that passed the Senate unanimously to endorsing multiple Republican voter suppression efforts, to opening the floodgates for billionaire- and corporate-money to flood elections and end up in the personal pockets of politicians.
And if any more justices join Thomas, Roberts and Alito in arguing that the Court can throw the 2024 election to whomever they please with a little help from Republican-controlled state legislatures the issue becomes even more urgent.
Now is, therefore, an essential time to add to that discussion the power of Congress to not only pass legislation that limits money in politics, Supreme Court interventions in state-based elections, racialized voter suppression and partisan gerrymandering, but also unambiguously prevents the Supreme Court from blowing up congressional and presidential efforts by ruling against them.
If not restrained now, get ready for 2000 redux when the Court and a handful of Republican-controlled state legislatures put Trump, DeSantis, Scott, Cotton or Hawley into the White House regardless of the 2024 election outcome.
(emphasis throughout is mine)
Originally posted at The Hartmann Report