Unpacking the Court, Further Proceedings

By Scott V. Sandford
Justice Correspondent

Last week, we offered a few modest thoughts about protecting Justice Ginsburg's legacy by unpacking the Court with new Justices next year.  The imminent confirmation of Aunt Lydia to a lifetime appointment on that Court has made us sharpen our thinking about what to do with a rabid pack of Republican extremists bent on criminalizing abortion and repealing the New Deal.

Amy Coney Barrett is already attracting wide
support from obedient Republican Senators

It turns out that a Democratic President and Congress have a few other tools at their disposal to keep the Republican-dominated Supreme Court at bay, assuming that Biden's margin of victory is big enough that they cannot nobble the election and install a Republican, as they did in 2000.

Now the Supreme Court two centuries ago decided that it had the power to overturn acts of Congress it concluded were unconstitutional.  That authority has been used sometimes for good, like overturning the Orwellian “Defense of Marriage Act,” but usually for ill, as when the 1930's Supreme Court chucked a bunch of New Deal laws into the trash until they were sufficiently intimidated by President Roosevelt to back off (that was the previous effort at “court-packing”).

That's the power it used to poke holes in the Affordable Care Act, first by absurdly holding that Congress lacked the power to require people to buy health insurance (even though it had the power to prevent them from buying all sorts of things, like weed) and the second by holding it couldn't tell states how to spend Federal Medicaid funds because – there wasn't any reason at all except it was somehow too mean to states, who had the sovereign right to let their citizens die for lack of health care.

How did those federal statutes reach the Supreme Court chopping block? If you were paying close attention in Federal Courts, or are just an irredeemable dork, you might remember that Congress decides under what circumstances the Court gets to decide these cases.  And that means Congress can change its mind if it doesn't like the results it's getting from a Court that includes two sex offenders and soon one Indiana Handmaid.  

Right now, Congress, in its wisdom, has granted to the Supreme Court final authority to decide all Constitutional challenges to federal law, including the Affordable Care Act.  

What if it didn't?  What if 28 USC § 1331, which gives federal courts general authority to decide Constitutional questions was changed?

What if the Judiciary Act of 2021 added some new sections along the following lines:

 

provided, however, that the Supreme Court shall have no jurisdiction to decide any Constitutional challenges to laws related to

(1) the provision of health care and health insurance, 

(2) protecting the rights of Americans to vote including regulating the manner in which states may modify provisions relating to voting and overriding state limitations on the right to vote,

(3)  efforts to protect the public from the effects of global warming and other types of environmental pollution,

(4) remedying past or present invidious discrimination against women and minorities, including claims that such remedies may have an effect on men or other privileged groups.

For the purposes of this provision, the term “Constitutional challenges” shall include any claim alleging that an act of Congress in some manner insults or injures the sovereignty of a State.

You get the drift.

We have in the past not been great fans of statutes purporting to strip the courts of jurisdiction to hear Constitutional challenges to federal laws, because then you've got Constitutional rights you can't enforce.  But if the only rights the six Republican goons will enforce are those of states against their citizens, maybe it's time to reallocate the burden of protecting rights to the political branches for a while.

There are some other less drastic changes that could be added to keep Brett “She was asking for it” Kavanaugh and his brethren at bay.

Right now for example, it takes only four Justices to accept a case for review or stay a lower court order.

We can fix that too!

The four-justice rule isn't a statute, it's a rule they pulled out of their Supreme blowholes.  Congress can stipulate the number by adding a little something like this:

The Supreme Court may (a) grant a writ of certiorari as specified in Chapter 81 of Title 28 U.S.C. or (b) stay any decision of any other state or federal court, by unanimous vote of the Justices.

So Clarence, Beer-lovin' Brett, Sam, and soon Spooky Amy won't be able to get into any mischief all by their lone selves!

Finally, since this essay on drafting is getting a bit tedious even for us, we've got one more crowd-pleasing suggestion for legislation that no one would disagree with:

The future home of the Marshall-Ginsburg Center
for the Study of Equal Justice Under Law

(a) A sum not to exceed $100,000,000 is authorized to be appropriated to reconstruct the building located at One First Street, N.E. in the State of Washington, D.C., formerly used to house the Supreme Court, for use as the Thurgood Marshall & Ruth Bader Ginsburg Center for the Study of Equal Justice Under Law;

(b) To ensure the continued efficient functioning of the Supreme Court,  a sum not to exceed $500,000 is authorized to be appropriated to provide appropriate video conferencing equipment for the Justices and staff of the Supreme Court and conference and courtroom facilities at any surplus federal installation, including any structure formerly used as an immigration detention facility.

Imagine how inspiring it would be for visitors to the Capitol to turn their attention across the street and see a structure devoted not to the perpetuation of white extremism, but to the important work of Justices Marshall and Ginsburg which falls to us to carry on!  We wouldn't even need to change the motto on the entablature.

All you have to do is vote.