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A Constitutional Weapon for Biden to Vanquish Trump’s Army of Judges

Republicans have erected a conservative fortress in the federal judiciary. Our founding documents provide the means to knock it down.

Mark Makela/Getty Images

We are now less than 90 days away from an election that President Donald Trump is openly attempting to steal. From that vantage, it may seem prematurebordering on presumptuousfor Democrats to start worrying now about what will happen if Joe Biden wins. But Democrats should worry: Even if voters give Democrats control of Congress and the White House and even if Joe Biden manages to enact the deep reforms needed to stave off economic catastrophe, come to grips with a public health emergency, and begin to root out the rot and corruption in our government, it may be all for naught. A conservative federal judiciary, freshly stocked with over 200 right-wing activist Trump judges, lies in wait. 

Biden has offered ambitious plans to pursue a Second New Deal if elected. If he’s serious, he needs to plan for the near certainty that John Roberts’s Supreme Court will resist in much the same way that a conservative Court undermined Franklin Roosevelt’s original version. Some have recommended court-packing, but there’s a better and perfectly constitutional solution that’s being largely ignored on the left: Congress can strip federal courts of their broad power.

The Roberts Court could—and, if left to their own devices, likely will—gin up conservative interpretations of the Constitution for the purpose of killing off as much of the Democratic reform agenda as possible. There are a number of plausible scenarios.

Imagine first that Democrats respond to America’s insane levels of inequality with a wealth tax. That move might be very popular, considering that millions of Americans have been thrown out of work since March while America’s billionaires have gained over $400 billion in wealth. But the Supreme Court would likely strike this down on the grounds that it fails to satisfy the Constitution’s requirement in Article I, section 9, clause 4 that so-called “direct” taxes must be apportioned among the states by population—a standard basically impossible for a wealth tax to meet, as there are so many more rich people per capita in New York than in Mississippi.

Next, imagine that Democrats try to address corporate influence-peddling in our government by enacting limits on corporate contributions to political campaigns. The Supreme Court would almost certainly eviscerate that law as well, holding that it violates the risible interpretation of the First Amendment in Citizens United v. Federal Election Commission in which a conservative 5-4 majority held that corporations’ campaign expenditures were as fully protected as any other form of political speech.

Finally, and perhaps most pressingly, consider the possibility that Democrats will attempt to head off a climate catastrophe by passing legislation that sets limits on carbon dioxide emissions while providing the Environmental Protection Agency with expansive new powers to write rules that hit Congress’s target at the lowest cost. The Supreme Court might dismantle this law too, holding that the Constitution prohibits Congress from delegating its legislative power to administrative agencies.

You won’t find any such rule in the text of the Constitution. But the prospect of conservative judges wielding a non-delegation scythe to mow down entire fields of federal regulation is nonetheless distressingly real. Conservatives have been agitating for years to cripple the federal government’s power to regulate business by requiring Congress to write into the law every jot and tittle of government regulations rather than, as has been the norm since the 1930s, legislating in broad strokes and relying on experts at administrative agencies like the EPA to fill in the details.

In the 2019 case Gundy v. United States, a dissenting opinion penned by Justice Gorsuch and joined by three other conservative justices argued openly for reviving the non-delegation doctrine. Those four conservatives have now been joined on the Court by Brett Kavanaugh. Shortly after his confirmation, Kavanaugh wrote a short opinion concurring in the Court’s refusal to hear a case that was basically a replay of Gundy but made it clear that as soon as the right case came along, he was ready to provide the fifth vote needed to bring non-delegation back from the dead: “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine,” Kavanaugh wrote, “may warrant further consideration in future cases.”

Republicans have built their recent political strategy around stocking the federal bench with right-wing judges for a reason: Through these means, the party can effectively stay in power even if it can’t win elections. And on that last point, the GOP knows that their time is running out, that demographics are inexorably reducing the voting power of the GOP’s coalition of older, less-educated rural and exurban whites. The furious energy with which Trump, Mitch McConnell, and the Federalist Society have worked to elevate partisan conservatives to the federal bench—by far the most consequential achievement of Trump’s presidency—is all about frustrating the ability of the Democrats to do much with power once they win it back.

This is why the Democrats need to be thinking ahead about how to tame the conservative Supreme Court. Recent proposals have focused mostly on shifting the Court’s composition through court-packing and the introduction of judicial term limits. But both of those strategies raise concerns. Court-packing—that is, creating more seats on the Supreme Court and filling them with liberal jurists—is unabashedly partisan and certain to spark enormous opposition. But even if Democrats manage to create new seats and fill them, court-packing would only reinforce the Court’s role as a political actor, which is not what anyone should want.

Limiting the terms of Supreme Court justices might be the ideal solution. It would, however, require a constitutional amendment, though there have been creative efforts to work around that by suggesting that justices get rotated off the Supreme Court after a term of years and onto one of the lower federal courts. But there is a more serious problem with term limits: They may, counterintuitively, deepen courts’ politicization by casting even more explicitly the right to make Supreme Court appointments as a prize awarded for electoral success.

There is another way. And as it happens, it’s a deeper reform that the Constitution specifically authorizes. Article III of the Constitution gives Congress substantial power to strip federal courts’ jurisdiction: a power that can be employed to rein in politicized courts and even to override judicial decisions, at least when courts are standing in the way of change that a substantial and enduring political coalition wants.

How would jurisdiction-stripping work? Start with the source of Congress’s authority. Article III, section 1 gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, section 2, clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose for approximately 99% of the Supreme Court’s total docket what cases the Court has the power to hear. As I explain in this article, to be published in December in the New York University Law Review, under its Article III authority, Congress can remove the Supreme Court’s appellate jurisdiction over particular cases, or particular issues, largely without constraint. 

Congress also has the power to limit the jurisdiction of state courts to hear federal questions, including constitutional claims. But on a practical level, it would not matter much even if state courts still hear federal constitutional claims. State courts lack both the authority to enjoin federal officials and the practical institutional power to counter a determined federal government. 

The implications of Congress’s Article III power are potentially profound. Congress’s power over courts’ jurisdiction means that it can claim for itself authority to interpret the Constitution in particular cases. What does that mean in practice? A couple of examples might better illuminate how it might work.

Let’s return first to the wealth tax. Imagine Congress enacts wealth tax legislation that includes a provision stripping the federal courts of jurisdiction to review the tax for consistency with the Constitution’s apportionment requirement. In so doing, Congress would be advancing its own understanding of the meaning of that part of the Constitution—the exact scope of the apportionment requirement is in fact subject to reasonable debate—and telling courts to stay out. If voters disagree, either with the tax itself or with Congress’s decision to limit judicial review of its constitutionality, they can discipline Congress by giving their votes in the next election to candidates who oppose the tax, the jurisdiction-stripping provision, or both. 

Congress could protect campaign finance reform in the same way: that is, by enacting campaign finance restrictions that are significantly more far-reaching than the Supreme Court’s First Amendment jurisprudence would permit and including a provision removing courts’ jurisdiction to hear challenges to the statute. Here, the stakes are somewhat higher, as the Supreme Court has already weighed in on the issue. But again, if either the restrictions themselves or Congress’s use of its Article III power to shield them from hostile courts prove unpopular, Congress will face discipline from voters, not judges. 

There are, of course, reasons to hesitate. First among them is the power of convention: We have traditionally acquiesced to an expansive role for the federal courts, albeit mostly without thinking about the alternatives. But given how badly the judiciary has been politicized, we should be asking whether we are willing now to continue down the path of unqualified judicial supremacy. Even before Donald Trump, the GOP had set its sights on partisan capture of the federal courts. That enterprise accelerated enormously once Trump was elected, and at this point, the Democrats will have to respond if they hope to enact the deep reforms that the country needs.

But the tit-for-tat of appointing liberal activists isn’t the answer; that just leads to a continuing battle over judicial appointments. The better option is to shrink the role of courts and stop permitting them to determine winners and losers in so many of our political disputes. Reining in the role of courts is the best way to kill the incentive that drives both parties to appoint activists to the federal bench. It is also the best way to reduce the Constitution’s excessive interference with democracy at the precise moment that demographics make progressive change a winner at the ballot box.

It’s important, finally, to grapple with the inevitability that, once established, Congress’s power to rein in the courts through jurisdiction-stripping will be used—and misused—by Republicans as well as by Democrats. Frankly, that downside seems less concerning given how courts have largely stayed on the sidelines while Trump and his Republican enablers have driven our country to the brink of chaos. Courts haven’t stopped Trump’s migrant “family separation” policy. Courts haven’t yet forced Donald Trump or his underlings to cooperate with Congress’s subpoenas and likely won’t before the election. Nor are courts likely to stop Donald Trump from undermining the postal service in an effort to cheat his way to a win in November.

To put it bluntly, we tend to overrate the role of federal courts in protecting us from the possibility of bad things happening. And we tend to underrate how much our long-running American tendency to turn our deepest political disagreements into legal disputes drains the energy out of our democracy. The surest protection in the long term is a citizenry that works both to strengthen democracy and to leaven it with decency.  We can’t sub-contract that job to judges, even to good ones—and certainly not to the judiciary that Donald Trump has made.