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On The Case

How Dems could curb a conservative SCOTUS without court-packing

(Reuters) - President Donald Trump and Republicans in the U.S. Senate are barreling forward with plans to lock down conservative control of the U.S. Supreme Court for decades to come. The president has said he will announce his nominee on Saturday to fill the seat of Justice Ruth Bader Ginsburg. Republicans have sketched out plans to vote on the president’s nominee before the Nov. 3 election.

But if Democrats gain control of the Senate and the White House in the election, there is a simple way they can blunt the impact of a conservative Supreme Court – without provoking a wrenching nationwide debate over expanding the number of justices on the court or sparking a constitutional crisis over Congressional power to restrict the Supreme Court’s purview.

According to an upcoming California Law Review article, The Supreme Court and the 117th Congress, Congress can home in on how the Supreme Court decides which cases to hear. By enacting a law to require at least six justices to agree to take a case, the paper’s authors, Stanford lecturer Andrew Jennings and former federal appellate clerk Athul Acharya, Congress would empower the Supreme Court’s liberal contingent to block “the most ideologically, socially or politically divisive” cases from going before the court.

“It would cool things down by requiring greater consensus,” said Jennings, who told me that he and Acharya, an associate at BraunHagey & Borden, drafted the paper in a matter of days after Justice Ginsburg’s death.

Of course, Democrats can only push through such a law if they win the Senate and the White House. But for liberals wondering if they’re going to be stuck for decades with a conservative court, Jennings and Acharya offer a prospective solution that just might work.

And Democrats wouldn’t even have to rewrite any existing law to change the Supreme Court’s procedure. Right now, the justices have complete discretion over their docket. The Supreme Court receives thousands of petitions every year asking the justices to review decisions by lower courts. The court grants review in fewer than 100 cases. To decide which cases merit their attention, the court has for more than a century applied the so-called rule of four: At least four of the nine justices must vote to take a case.

But the rule of four, as Jennings and Acharya explain in their paper, is not even a formal procedure, much less an actual law. “The ‘rule of four’ is not a command of Congress,” wrote Justice Felix Frankfurter in a 1957 dissenting opinion (77 S.Ct. 459). “It is a working rule devised by the court as a practical mode of determining that a case is deserving of review.”

If Congress were to mandate that six or more justices must agree to take a case – which could be accomplished with a one-sentence amendment to the U.S. Code, according to Jennings and Acharya – the court’s liberals could block the Supreme Court from deciding politically divisive issues. The Supreme Court, they predicted, would instead hear mostly technical legal disputes, such as patent, tax or government contract cases, and would resolve splits among federal appellate courts on how to interpret the law.

I should note that the paper by Jennings and Acharya discusses other ways that a Democratic Congress and president could rein in a conservative Supreme Court. Democrats could, for instance, expand the number of justices on the court to dilute the power of the conservative bloc. The U.S. Constitution does not mandate the number of justices on the court, and, as Jennings and Acharya explain, Congress has directed at various moments in U.S. history that the court contain as few as five justices and as many as 10. If a Democratic Congress were to decide to add justices to restore the court’s ideological balance, it would just have to change one word in the operative 1866 law specifying the size of the court.

Alternatively, wrote Jennings and Acharya, Congress could attempt to restrict the kinds of cases that the Supreme Court is entitled to hear. The Constitution, they explained, says only that the Supreme Court must hear cases of “original jurisdiction,” such as disputes between states. And Congress, they said, has constitutional power to create “exceptions” to the Supreme Court’s purview. Lawmakers have exercised that power from time to time, the paper said, including in an immigration law that bars all courts from reviewing certain immigration decisions by the executive branch of the government.

A Democratic Congress, wrote Jennings and Acharya, could enact a wholesale restriction on the Supreme Court’s jurisdiction over federal cases. Or it could take a more targeted approach, by including provisions in particular laws, such as civil rights or healthcare statutes.

Either option would be contentious, to say the least. As would legislation to expand the number of justices on the court. As Acharya pointed out in an interview, “court-packing” and “jurisdiction-stripping” are already dirty words in the public imagination.

The rule of four, by contrast, is an obscure Supreme Court procedure that’s hardly sacrosanct in the minds of most Americans. So enacting a law to require that at least six justices must agree to grant review, said Acharya and Jennings, could be less controversial than the other choices available to a Democratic Congress.

“The politics,” Acharya said, “would definitely be easier.”

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