Thanks to the Supreme Court reform proposal he presented to the nation a week after he became the lamest of lame ducks, President Biden may finally have what he’s always wanted: grounds to compare himself credibly to Franklin Delano Roosevelt. At first blush, the details of Biden’s plan—in particular, the idea that future Supreme Court appointments should be limited to 18-year terms and that a new justice be appointed every two years—seem more fanciful and not worth taking as seriously as Roosevelt’s brand of “Court-packing” in 1937. That plan involved a trick designed to add six justices immediately so he could get his way on legislation the more conservative sitting Court had blocked.
At the time, FDR enjoyed Democratic supermajorities in both Houses of Congress, and public opinion was initially on his side. By contrast, Biden signed his name to an op-ed in the Washington Post, did not confer with congressional Democrats before floating the idea, and is confronted with an insurmountable hurdle in the Republican-controlled House. Not to mention he is exiting the presidency and has no political power left to speak of.
Still, while Biden’s specific proposal has no chance of passage during his presidency, the kind of threat it poses to the Court’s independence is here to stay. The center of the Democratic Party is now behind Court reform, and his party successor and possible successor to the Oval Office, Kamala Harris, has also endorsed the idea. Moreover, the remaining Democratic Party senators openly opposed to filibuster reform (Joe Manchin and Kyrsten Sinema) will be gone by January 2025—and once Democrats achieve majority status in the Senate at some point in this decade, they will likely kill off the filibuster and thereby make it possible for epochal legislation to pass by a single vote. Republicans and Democrats alike who care about the Court’s independence and its critical role in our constitutional democracy should worry about this—and they should think critically about what is needed to avoid this unfortunate but entirely foreseeable future.
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To understand the nature of the threat to the balance of powers and the constitutional order represented by these ideas, we must first understand the roots of the revolution in Democratic Party thinking about the need to upend the structure of the high Court. The immediate cause is obviously their dissatisfaction with case outcomes and their sense that they are unlikely to flip the balance of Republican to Democrat-nominated justices in the near future. But their newfound and increasingly passionate hunger to take a jackhammer to the foundation of a coordinate branch of government is driven by a more deeply rooted despair—a despair over not the perceived flaws of our judiciary, but over those of our national legislature.
Congress is defunct as a lawmaking institution in critical respects. It has proved unable to legislate on our most salient national issues. It has become, in Jonah Goldberg’s apt phrase, a parliament of pundits. This fact is central to the growing assault on the judiciary.
Many recent hot-button Supreme Court decisions concern the interpretation of statutes and the overreach of the executive branch. For example, the Court has concluded that Congress did not provide the executive with the requisite statutory authority to do things like forgive student-loan debt and implement certain novel measures to combat carbon emissions.
Now, if we had a functional Congress, the political response to these legal conclusions would be obvious if they were in fact so unpopular: The legislature should change the law. Legislators should work in Congress to pass new statutes to give the executive branch the authority the Court had concluded it lacked. Even the upshot of the Court’s recent constitutional holdings would, in other eras, have been seen as an invitation to congressional action. Most notably, the Dobbs decision ending the constitutional right to an abortion left states and Congress in the driver’s seat with respect to abortion policy. A healthy Congress might be equipped to respond.
That Democratic politicians do not funnel their political response through legislation flows from the fact that politicians and voters alike no longer even pretend that Congress can and should do its job of passing laws that grapple with the most pressing issues of the day. Just consider where the protests occur. Any graduate of a high-school civics class or reader of the U.S. Constitution would expect expressions of popular outrage about political controversies—on matters as various as abortion policy, immigration reform, or student-loan debt forgiveness—to be directed at the Capitol. After all, Congress is where the people’s representatives sit. Historically, that was the case. The 1913 Women’s Suffrage Parade commenced at Congress; the Bonus Army of discontented World War I veterans marched to the Capitol; the March on Washington converged on D.C. to convince Congress to pass civil-rights legislation.
Nowadays, the protesters are often across the street, shouting at the Supreme Court with their backs to the Capitol. And members of Congress are often the ones leading the protests.
Even during the January 6 assault on the Capitol, the true focus was not on Congress but on the other common site of political protest in Washington—the White House. To the protesters, the question of who would be president was existential. While they looked to Congress for a day, they understood the presidency to be the real center of power.
Why do protesters now congregate at the Court and only remember Congress on the one day it seems to hold the presidency in its hands? And why are Democrats turning to Court-packing instead of passing laws to achieve their policy objectives? It all comes back to the weakness of our modern Congress: the toxic interaction of institutional rules and partisanship that too often leaves Congress incapable of living up to its constitutional responsibilities. Time and time again, Congress fails to tackle the biggest issues of the day. Even if a majority can be cobbled together in both Houses, the Senate filibuster tends to stand in the way of passing consequential bills. In an age of intense partisan polarization, members of the minority party rarely have an incentive to help the majority party clear the filibuster’s 60-vote hurdle that closes off debate and leads to a final vote to notch a legislative achievement. Voters have responded by directing their efforts at change to the president—and since 2008, the president in power has been all too happy to stretch his legal authority to its limits to comply with their demands. Lawsuits ensue. The Supreme Court steps in. Frustration with the Court mounts.
This is unsustainable. In a direct contest, the counter-majoritarian Court cannot long withstand the full force of popular anger and the presidential bully pulpit. The Court must be able to claim credibly that, in acting against executive fiat, it’s defending the prerogatives of a more accountable branch, Congress. But with Congress debilitated, the Court’s paeans to the constitutional authority of Congress ring somewhat hollow. In the coming years, either Congress will be strengthened, or pressure will continue to build on the Court until the dam breaks. Biden’s proposal is the first substantive sign that water is beginning to seep through.
Congress and the public have grown used to assuming that the president can unilaterally respond to the salient public-policy issues of the day. Congress can’t pass a statute, but the president might be able to issue an executive order or an agency could issue a new regulation. The language of an old statute might be stretched to address whatever new social problem the faction wants resolved. The executive branch is often eager to comply. By acting, the president can show his electoral base that he’s willing to do something. The problem is that this “something” is often illegal and unconstitutional. That lack of power might be frustrating, but it should not be surprising, since the Constitution empowers Congress to be the primary policymaker in our system of government.
What happens next? The policy disagreement that ought to be worked out through political contests in Congress is transported into the courts. Those who disagree with the president’s new order or agency regulation sue. The case makes its way to the Supreme Court. The plaintiffs are often successful: The executive branch lacks the legal authority it purports to have. The Court slaps down the executive order or the agency regulation. The supporters of that policy grow angry. They conclude that the Court is illegitimate; it’s an unrepresentative branch thwarting the people’s will. What these frustrated voters—and likely all of us, whenever this cycle comes for one of our own policy priorities—so often fail to recognize is that this all too familiar and unfortunate series of events was unleashed by congressional incapacity.
Perhaps the most memorable modern episode was President Obama’s about-face on immigration reform. Initially, Obama recognized that he wasn’t “king.” He said: “I can’t do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen. I’m committed to making it happen, but I’ve gotta have some partners to do it.” The partners never came aboard. So Obama instead forged a partnership with his “pen and phone.” He unilaterally implemented DACA and DAPA—blanket policies that shielded large classes of undocumented immigrants from the risk of immigration enforcement. DACA and DAPA have been percolating through the federal courts ever since, as litigants thrust the Supreme Court into contentious political debates surrounding immigration.
Or consider President Biden’s ill-fated attempt to extend the Centers for Disease Control’s blanket moratorium on tenant evictions from rental properties as the Covid pandemic waned. The Court had already warned Biden that he would need clear authorization from Congress should he want to extend the moratorium. Initially, the Biden administration got the message. In a White House statement, Biden called on Congress to “extend the eviction moratorium to protect such vulnerable renters and their families without delay.” Congress was in no mood to answer the president’s call. Still without the requisite legal authority, Biden unilaterally extended a modified version of the moratorium, daring the Court to stop him. The Court took the dare. Predictably, pundits condemned the Court. MSNBC’s Mehdi Hasan lamented that the Court had “attacked” the eviction moratorium. Writing in the New York Times, Robert Reich was frustrated that the Court “threw out” Biden’s policy. The only solution, according to Reich, was simple: “Criticize SCOTUS’s loss of credibility. Expand the size of SCOTUS.” These commentators were joined by the nation’s pundits in chief: members of Congress. Representative Rosa DeLauro denounced the Court’s decision as “cruel.” Speaker Nancy Pelosi, who had proven unable to cobble together a majority to legislate a modified moratorium into existence, decried the Court’s decision as “arbitrary and cruel.”
The eviction-moratorium failure didn’t dissuade Biden from trying a similar tactic with student debt. Unable to pass student-loan forgiveness through Congress, he sought to stretch the language of an existing statute to the breaking point. Again, the Court wasn’t having it. And again, members of Congress heaped scorn on the Court, with the president joining in.
Political commentators are not oblivious to congressional incapacity and its relationship to presidential policymaking, subsequent pushback from the Supreme Court, and resultant attacks on the Court’s legitimacy. For example, conservatives in particular consistently critique executive “pen and phone” overreach and condemn our absentee Congress and its unwillingness to tackle critical policy issues, be it immigration, debt, deregulation, or social policy.
The problem is not so much the diagnosis as the inadequacy of the proposed cure. Too often, some suggest that the Supreme Court can fix this power imbalance on its own. If the Court halts executive overreach, we are told, political pressure will be redirected to the proper lawmaking forum: Congress. Voters will recognize the inadequacy of presidential action and redirect their anger toward members of Congress, who will have no choice but to overcome the forces of congressional inertia and rediscover the possibility of lawmaking.
This theory has not passed the test of time. Obama’s “pen and phone” remark was uttered a decade ago, and two subsequent presidents have echoed him in practice without the public or its congressional representatives changing their tune or behavior. Instead of nudging Congress to legislate again, the political pressure has simply continued to strain the other branches, especially the Court. Framed as a two-way contest, the Court is viewed not as empowering a representative Congress but as undercutting the more democratically accountable president. Perversely, the Court’s antidemocratic nature—antidemocratic by constitutional design—is perceived as a problem because the democratic institutions are failing.
So, congressional dereliction is at the root of executive overreach, the Court’s prevention of such overreach, and the consequent public outcry against the Court. At the root of much of this congressional dereliction is the Senate filibuster. When combined with our current political polarization and the fact that neither party seems to have the power to win a Senate supermajority of 60—the three-fifths needed to end debate on the floor of the Senate and force an actual vote of the full body—the filibuster serves less as a brake and more as a blockade. Even when majorities in both chambers want to rise to the challenge of legislating on a particular topic, they can’t. As a result, Congress cannot serve as the relief valve for public controversies, as it was designed to be.
In theory, the filibuster promotes compromise and fosters deliberation. In practice, it does not. Given partisan polarization, the minority very rarely has an electoral incentive to compromise with the majority. And with the parties in near parity, the majority rarely has a supermajority. As a result, not much important, meaningful legislation gets passed.
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There is a solution to this seemingly intractable problem. This solution would allow Congress to pass legislation again, while also allaying the worst fears of the filibuster’s foremost defenders. It could give Congress the capacity to legislate once more without leading to a tidal wave of partisan legislation and legal whiplash as control of Congress passes from the hands of one bare partisan majority to the next every few years.
The proposal is simple: Give the Senate two ways to pass legislation. The first track preserves the status quo: If a bill can obtain a 60-vote supermajority, cloture can be invoked and the bill can be immediately passed.
The second track is the innovation. It would give more divisive, partisan bills a chance to survive. If a bill enjoys the support of a simple majority but not a supermajority, it need not be killed at the hands of the filibuster as a matter of course. Instead, under the new dispensation, it could become law if it were passed twice—by two successive Congresses, with an election in between.
The Senate Rules could be amended as follows: If the Senate passes a bill by simple majority, it will not be considered formally passed yet. That is, it will not head to the president’s desk for signature (if the House already passed it) or head to the House for a vote (if the bill originated in the Senate). Instead, a bill with simple majority support will be provisionally passed. It will hang in limbo until after the next biennial election. With a new Congress seated following that election, all the bills that have been provisionally passed in the prior session (i.e., bills that enjoyed simple majority support) could be taken up for a vote and passed out of the Senate by a simple majority.
The upshot is straightforward: If a bill can’t obtain a supermajority, it can still pass through the Senate if it can obtain two simple majorities, once before and once after the American people elect a new Congress.
There are versions of this at the state level. In New York, for example, it takes a vote of two successive legislatures to add a new amendment to the state constitution under the terms of the delightfully named “Forever Wild” clause of 1894. It is difficult to achieve, but it has worked from time to time; there have been 19 such amendments passed in the past 28 years.
This innovation will give Congress a real shot at legislating again. At the same time, it won’t allow a fleeting partisan majority to ram its legislative agenda down the American people’s throats. If a party wants to pass a partisan bill, it will need voters to sign off on its agenda by reelecting its members. That is, a party will need to hold on to its majority over the course of an election cycle to pass bills that lack bipartisan support.
Those who are rightly worried about protecting the Supreme Court’s legitimacy—and the health of our constitutional order—have special reason to support this filibuster-reform proposal. The filibuster is a core contributor to Congress’s weakness. Congressional incapacity leads to undue pressure on the president to make law. The Supreme Court then does its job and prevents the president’s legal gambits. Citizens grow frustrated at the Court. Accusations of illegitimacy and calls for reform from media, members of Congress, and now the president ensue. Safeguarding the Supreme Court requires grappling with Congress’s frailty. This modest filibuster reform is the right place to start.
Photo: AP Photo/J. Scott Applewhite
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