A shot across the Court’s bow

From Mark Tushnet:

Here’s a thought in the event that there is a Biden appointed commission on court reform.  What about a Joint Resolution on Judicial Power: “No court shall hold a federal statute unconstitutional unless it concludes that the statute is manifestly unconstitutional.”

Tushnet discusses this suggestion and some limitations here.

I am somewhat sympathetic to this idea.  I certainly agree with the substantive idea that underlies it; we have way too much judicial review of social and economic legislation in this country.  Tushnet’s proposal is not at all a cure for conservative judicial activism by the Roberts Court, but it sends the right message:  “We’re on to you.  We know what you’re doing:  using specious legal reasoning to reach results you favor on ideological grounds.  Knock it off.”  It’s not a substitute for enlarging the Court – nothing is – but it is a useful shot across the Court’s bow.

Similar tactics could be used to pressure the Court in other ways.  For example “When addressing statutory ambiguity and potential drafting errors, the Court shall interpret statutes to achieve their public regarding purposes.  Rulings that force Congress to rewrite existing legislation shall be strongly disfavored.”  The Administrative Procedure Act could be amended to formalize Chevron deference.

Congress should also tell (or remind) the Court that it must defer to Congressional findings of fact unless they are clearly erroneous or there is reason to suspect an illegitimate (racist, sexist, etc.) motivation.  In Shelby County, Roberts opined that the preclearance provisions of the Voting Rights Act were no longer necessary to prevent racially motivated election law “reforms”.  His arrogant personal fact finding was contradicted by the Congressional record and immediately exposed as nonsense when the decision was handed down.  Congress could explicitly call out Roberts for substitution of his “factual” judgment for that of Congress when it attempts to reinstate the Voting Rights Act.

While potentially useful, these examples also illustrate why Court enlargement is the only reliable method for reining in the Roberts Court.  As Tushnet notes, his proposal would probably be declared unconstitutional by the Court, a problem that plagues almost all reform proposals other than enlarging the Court (term limits, panel systems, jurisdiction stripping).  More fundamentally, these examples illustrate that legal reasoning about the constitution, the administrative state, and complex legislation is way too open-ended and discretionary to be substantially hemmed in with words.  There is no substitute for good motives, but motives cannot be legislated.  We need better Justices.

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