INTERVIEW

How to fix the Supreme Court: Congress has the power, and simply isn't using it

Historian David Gans on the lessons of Reconstruction, when Congress enforced reforms on a stubborn Supreme Court

Published January 15, 2023 12:00PM (EST)

Gavel coming down on the US Supreme Court (Photo illustration by Salon/Getty Images)
Gavel coming down on the US Supreme Court (Photo illustration by Salon/Getty Images)

For decades conservative Republicans have focused attention, resources and organizing on reshaping America's courts, on a scale progressives have never dreamed of. But now, with the complete capture of the Supreme Court by a conservative supermajority, and a series of stunning rulings last term — most notably the Dobbs decision, overturning Roe v. Wade — that could finally be about to change. With the House of Representatives now in Republican hands, there's no prospect of a congressional response in the next two years, but that's all the more reason for developing strategies and organizing for action in anticipation of regaining the power to act in 2025. 

Mitch McConnell's blatant theft of two Supreme Court seats has justifiably thrust the idea of court expansion to the fore. While sleepwalking centrists stifled any action in Biden's first two years, the high court's increasing recklessness has dramatically eroded support for the current institution, renewing the possibility for significant reform, particularly since the recent rulings sharply threaten growing popular movements in the Democratic Party's base. But what kinds of reform will actually work remains unclear.

Historical arguments have mostly focused on Franklin D. Roosevelt's abandoned effort at court expansion from the 1930s. Although that failed, it nonetheless altered the court's jurisprudence, saving New Deal legislation as Roosevelt had wanted. Furthermore, both the suddenness of Roosevelt's action and its abrupt abandonment are distinctly at odds with our current situation. 

There is a much better historical reference point for us to consider, as David Gans argues in a forthcoming paper in the Lewis and Clark Law Review, "Court Reform and the Promise of Justice: Lessons from Reconstruction." Gans is director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center, and contends that the post-Civil War period holds significant lessons about how to achieve greater accountability in a time of intense political conflict. Perhaps most significantly, that period saw the most fluidity in the size of the Supreme Court — which is not dictated by the Constitution — but its most profound and lasting impacts lay elsewhere, in the expansion of federal court jurisdiction to protect constitutional rights. 

Gans doesn't claim that Reconstruction provides a paint-by-numbers guide for what should be done now. His approach is more in line with Mark Twain's reputed aphorism, "History may not repeat itself. But it rhymes." So court expansion may well play a decisive role this time around, but that's only one aspect of the arsenal of powers Congress has available under the Constitution, and Reconstruction saw these powers were most vigorously debated and deployed. If Congress has rarely exercised those powers, that doesn't mean that they don't exist or should be regarded as unthinkable. But it does mean we should learn as much as possible from history. Salon interviewed Gans by email for a detailed unpacking of his historical argument. Our exchange has been edited for clarity and length.

When people think about court reform, attention invariably goes to FDR's court-packing plan. Why do you think Reconstruction is a more fruitful historical reference point, and why is this so little known?  

The defeat of Franklin Roosevelt's far-reaching court expansion plan — which would have added an additional justice for every sitting justice over the age of 70 — receives the lion's share of attention in modern debates over court reform. Yet in many respects, Reconstruction provides a more salient historical precedent. During Reconstruction, Congress used its powers under the Constitution to reform the federal judiciary in a variety of ways. It repeatedly changed the size of the Supreme Court, stripped the court of jurisdiction over a class of cases that sought to challenge Reconstruction, and used its enforcement power to protect fundamental rights and expand the ability of the federal courts to redress state abuse of power.

During Reconstruction, Congress repeatedly changed the size of the Supreme Court, stripped it of jurisdiction over certain cases, and expanded its oversight over state-level abuses of power.

Reconstruction provides an important reminder that Congress has many tools available to it to ensure that the Supreme Court and the federal judiciary upholds our whole Constitution's bedrock promises of liberty and equal justice. And unlike the case of FDR's court expansion plan, Reconstruction provides examples of reforms that were successfully enacted into law. In all these respects, Reconstruction provides a model for comprehensive court reform today. 

You write that "almost all of the court reforms being debated today have historical antecedents in the Reconstruction period." The first thing you consider is changes to the size of the court — first it was expanded it to 10 justices, then shrunk to seven, then expanded back to nine. You ask, "Did court expansion succeed?" And you answer, "both yes and no." In what sense did it succeed and in what sense did it fail? 

Court expansion had an important effect on some areas of law, but not others. Court expansion during the Reconstruction era succeeded in producing a new majority on the Supreme Court disposed to uphold President Lincoln's wartime measures. It led to one of the quickest overrulings in Supreme Court history. In 1871, in Knox v. Lee, just one year after the Supreme Court struck down the use of paper money as legal tender, the new majority overruled that decision, championing Congress's broad power to solve national problems.  


Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.


But those who hoped the newly constituted Supreme Court would vindicate the Constitution's new guarantees of liberty and equality were bitterly disappointed. Even with new appointments, the Supreme Court of the Reconstruction era repeatedly gutted the 14th Amendment, turning "what was meant for bread into stone," as Justice Noah Swayne observed. This reflects both the appointment politics of the day, in which presidents prioritized appointing justices that would uphold wartime measures, and a national mood that, as time went on, increasingly took a tragically dim view of Reconstruction's promises of racial justice.   

The example of jurisdiction-stripping was complicated: Congress first expanded the court's jurisdiction, then cut it back. What happened to create that situation? 

Reconstruction posed immense legal and political questions concerning the states of the former Confederacy in the wake of the Civil War. One of the biggest questions concerned how Southern states would be governed until they satisfied the conditions for readmittance to the Union. In the Reconstruction Act of 1867, Congress split the former Confederacy into five military districts and required the former states to ratify the 14th Amendment and adopt new state constitutions that broadly granted voting rights to all adult men without regard to race.  

Southern litigants brought a slew of challenges to the Reconstruction Act, claiming that the military rule of the former Confederacy was unconstitutional. In the wake of an 1866 ruling that overturned the military conviction of a Confederate conspirator in Indiana, congressional Republicans feared that the Supreme Court would use a habeas corpus action brought by William McCardle to strike down military rule of the South and wreak havoc with Reconstruction.  

Congress responded by enacting a law that took away the Supreme Court's appellate jurisdiction to review habeas decisions by lower federal courts. This move succeeded, producing one of the preeminent examples of congressional control of Supreme Court jurisdiction. Ultimately, the court dismissed McCardle's case, observing that "the power to make exceptions to the appellate jurisdiction of this court is given by express words" in the Constitution. Jurisdiction-stripping did not rein in the Supreme Court in any lasting way, but it succeeded in preventing the court from considering the constitutionality of the Reconstruction Act.    

As an alternative to jurisdiction-stripping, congressional Republicans attempted to require a supermajority vote on the Supreme Court in order to overrule Congress. What arguments were made for that effort, and are they worth reconsidering today?

In seeking to require a supermajority vote of two-thirds of the justices to strike down an act of Congress, Republicans in 1868 stressed that the Supreme Court was initially composed of six justices, effectively requiring a two-thirds vote to decide a case. They also drew an analogy to the constitutional rules for a presidential veto. The bill passed the House but died in the Senate.   

Supermajority requirements are an avenue to rein in the court and make it harder to strike down federal laws, but they hardly offer a solution to a court dominated by a conservative supermajority, as ours is today. Even with a supermajority requirement, the Roberts court would remain free to decimate fundamental rights by overruling rights-protective rulings, as it did in Dobbs, and inventing judge-made rules, such as the non-textual and ahistorical "major questions" doctrine the court invoked last term in West Virginia v. EPA, when it invalidated a federal rule issued to reduce greenhouse gas emissions from power plants.  

In fact, the court's invocation of the "major questions" doctrine to require that Congress speak clearly if it wishes to delegate power to an agency concerning certain matters of political and economic significance illustrates how the conservative supermajority on the Court has been able to frustrate congressional intent while simultaneously giving off the perception that it is deferring to congressional power.

You write, "While court expansion and jurisdiction-stripping proved most important in the short run, the most enduring reforms were those that provided a federal forum to vindicate constitutionally guaranteed rights." What, specifically, did Congress do, starting with the Habeas Corpus Act? 

Reconstruction witnessed the greatest enlargement of federal jurisdiction in American history. Many of these measures changed the powers of the federal courts to vindicate constitutionally guaranteed rights, seeking to make the federal courts partners in Reconstruction's project of ensuring equal citizenship and reining in abuse of state power. The Habeas Corpus Act of 1867 gave federal courts the power to free a person held in state custody in violation of the Constitution or federal law, while Section 1983, enacted in 1871, created a right to sue state and local officers to enforce federal constitutional rights in federal court.  The big idea underlying both these landmark pieces of legislation was that it was up to federal courts to safeguard constitutional rights and ensure governmental accountability.    

Reforms of this sort should be part of the progressive court reform agenda today. The Roberts court has repeatedly closed the courthouse doors to those victimized by government or corporate abuse of power. A central goal of court reform today should be to realize our constitutional promise of equal justice under law by broadly opening courthouse doors that the Roberts court has repeatedly bolted shut.  

In your section "Lessons For Court Reform from Reconstruction," the first lesson is that the Constitution gives Congress broad powers to reform the federal judiciary, and the second is that "Reconstruction provides a lens to evaluate the reforms pursued by Congress," both its successes and failures. First I'd like to ask about court expansion, which you note "halt the 6-3 conservative majority's effort to rewrite huge swathes of constitutional law and imperil basic freedoms long enjoyed by Americans." How would you apply the history you recount to where we are today?

The Roberts court has repeatedly closed the courthouse doors to those victimized by government or corporate abuse of power. A central goal of court reform today should be to realize our constitutional promise of equal justice under law.

Appointments to the Supreme Court are a key way of changing the law. That's true today. It was also true during Reconstruction. The "legal tender" cases of the Reconstruction era illustrate that court expansion can be an incredibly powerful tool to change a hostile Supreme Court. Court expansion led to overruling a prior precedent on a hotly disputed question. Reconstruction also reminds us that appointments matter: Many of the justices appointed by Republican presidents during Reconstruction, tragically, played a role in burying the promise of the 14th Amendment's safeguards for liberty and equality.  

Regarding jurisdiction-stripping, you warn that "A bill stripping the Supreme Court of jurisdiction and broadly foreclosing judicial review over a class of cases would provoke a major constitutional fight." 

Taking away the Supreme Court's jurisdiction over a class of cases is one of the tools Congress possesses, but I worry that jurisdiction-stripping may not prove a successful avenue of reform in today's climate. Limiting Supreme Court jurisdiction would leave final say with the federal courts of appeal, which in many cases remain dominated by conservative ideologues appointed to the bench by Donald Trump. A reform that empowered conservative courts of appeal to move the law far to the right, without any possibility of appeal, would not be progress. 

What other procedural reforms might make more sense? Reforming the infamous "shadow docket," for example?

Currently, the Supreme Court has virtually complete control over the cases it hears; four justices, less than a majority, can vote to hear a case. The Roberts court has used this power aggressively to hear cases handpicked to allow the conservative supermajority to pursue their ideological projects and overrule cases they dislike, and has repeatedly employed its emergency docket — i.e., the "shadow docket" — to move the law to the right, all without the transparency, deliberation and publicly available legal reasoning that is essential to the judicial process.  

Congress can change this. It can prescribe the kinds of cases the court can hear, require a supermajority to hear a case or insist on a conflict in the lower courts as a prerequisite to Supreme Court review. It can limit shadow docket abuses by prescribing tough standards for emergency relief.    

A third path forward is to "pass landmark civil rights legislation that opens the courthouse doors and ensures the promise of justice for all Americans," you write. "[L]egislation of this kind will be essential — indeed, it is also necessary to combat how the conservative majority of the Roberts Court has gutted the Voting Rights Act." Let's start there: What can be done to restore the Voting Rights Act? 

The Roberts court has repeatedly eviscerated the Voting Rights Act. In 2013, in Shelby County v. Holder, the court gutted the Act's preclearance remedy applicable to jurisdictions with a long history of flouting constitutional guarantees. To employ these remedies, the court's conservative majority said, Congress had to write a new coverage formula. In 2021, in Brnovich v. Democratic National Committee, the court's conservatives rewrote the Voting Rights Act's prohibition on state practices that result in racial inequality at the polls, making it nearly impossible to challenge a voting law that disproportionately disenfranchises voters of color.   

Congress cannot alter Shelby County's constitutional ruling, but it can revitalize the Voting Rights Act by writing a new coverage formula and setting aside Brnovich's cramped construction of the Voting Rights Act's result test. Congress can make real the promises of the 15th Amendment by nullifying neutrally written laws that suppress the vote in communities of color. 

You go on to say that several other areas of the law "cry out for congressional intervention." The first of those is to eliminate the doctrine of qualified immunity. What's the source of this problem?

Congress can end qualified immunity, a judge-made rule that makes it incredibly difficult to hold police officers and other government actors accountable when they violate constitutionally-guaranteed rights. Qualified immunity has no basis in the law. When Congress enacted Section 1983 during Reconstruction, it consciously chose not to provide any immunities to officials who violate constitutional rights in carrying out their duties. By gutting Section 1983's promise of accountability, the Supreme Court has let government officials violate fundamental rights with impunity.  

A second area you cite is rehabilitating habeas corpus review by repealing AEDPA. Can you explain?

Habeas corpus is critical to rein in state abuse of power and vindicate freedom, but today, habeas corpus is badly broken. The Supreme Court's conservative majority has interpreted AEDPA, a 1996 law that requires federal courts to defer to state courts, to make it nearly impossible to vindicate constitutional rights. According to the conservative supermajority, habeas review is an intrusion on state sovereignty and should be only available in the most egregious of cases. Congress can change this and restore a federal forum to vindicate constitutional claims by state prisoners and redress criminal justice abuses.  

How can any of this be accomplished with a conservative supermajority on the Supreme Court? Or is the real issue that the difficulties of reform will ultimately drive the process of court expansion?

None of this will be easy. Progressives should be cognizant that the conservative supermajority will look for ways to gut any new legislation enacted by Congress. Any new measures must be drafted using the clearest language possible to prevent the court from exploiting ambiguities to hollow out Congress' handiwork — and the likelihood that a court like the current one could simply ignore these legislative endeavors suggests it might be wise to include them as part of a reform package that includes court expansion.

But Congress should not shy away from acting on its obligation to enforce constitutional rights simply because it might provoke a clash with the conservative supermajority on the Supreme Court.  On the contrary, progressives in Congress have to make the case that the Supreme Court is getting the Constitution dead wrong and that Congress must use its powers to vindicate our Constitution's text, history and values. 

Finally, what's the most important question I haven't asked? And what's the answer?

The question would be: How should progressives understand the goal of court reform? What are the failures of justice that court reform should aim to correct? The answer is that modern debates over court reform are dominated by questions of court expansion and term limits. But court reform is about more than the composition of the Supreme Court. It's about whether the Supreme Court is acting as an impartial arbiter to realize the Constitution's promise of equal justice under law, to safeguard bedrock rights and to ensure that our courts work for all Americans.  

The Roberts court is failing in all these respects. From abortion to voting rights to criminal justice to government and corporate accountability, we have a Supreme Court that is declaring open season on fundamental rights and putting accountability far out of reach. With a 6-3 conservative Supreme Court systematically bent on rolling back fundamental freedoms and closing the courthouse doors to the most marginalized Americans, a central part of the court reform agenda should be about ensuring the promise of justice for all.  


By Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

MORE FROM Paul Rosenberg