Federal Courts and Nominations

BLOG: How Do We Fix an Ailing Court? Lessons From Reconstruction

The Supreme Court is ailing, but you wouldn’t know it from Chief Justice Roberts’s 2022 year-end report on the state of the federal judiciary.  Rather than grapple with the plummeting loss of public confidence in the institution in the aftermath of a term that saw the Court decimate fundamental rights and equality, Roberts used the occasion to tell the story of the fearless district court judge who risked his life and well-being to desegregate the public schools of Little Rock, Arkansas in the wake of Brown v. Board of Education.  What Roberts willfully ignored, of course, is that this is not a Court courageously acting to vindicate constitutional promises of freedom and equality.  Quite the contrary.  Roberts may not want to talk about the elephant in the room, but that won’t make the crises engulfing the Court go away.

The Roberts Court continues to do major damage to the Supreme Court’s legitimacy as an impartial constitutional arbiter. The Court’s conservative majority claims that it follows the Constitution’s text and history where it leads, yet consistently makes a mockery of originalist principles in rulings that move the law far to the right.  In 2022, the conservative supermajority eliminated the right to abortion, while supercharging gun and free exercise rights.  In 2023, the Court may end affirmative action, gut what little is left of the Voting Rights Act, blow up antidiscrimination law by creating a First Amendment license to discriminate, and give itself the power to second-guess state constitutional rulings protecting voting rights in federal elections.  This term, like the one that concluded last June, is likely to bring a spate of maximalist rulings that put the constitutional imperative of equal citizenship further out of reach.

The Supreme Court is not only changing the law in radical ways; it is repeatedly taking procedural shortcuts to get there.  One of the most remarkable shifts in recent years is the rise of the shadow docket.  The Roberts Court has weaponized the emergency application process—traditionally a tiny part of the Court’s work—to move the law to the right at breakneck speed, often without the transparency and deliberation that is essential to the judicial process.  From abortion to voting rights, the Court has repeatedly used the shadow docket to nullify established fundamental rights without full briefing and oral argument.  This is a Court that is in a hurry to roll back rights, even if that means jettisoning key safeguards critical to informed judging or issuing orders without any publicly available legal reasoning.

It’s no surprise then that there’s been lots of discussion about the need for court reform to save a Court that has lost sight of the whole Constitution’s promises of freedom, equality, and a vibrant multiracial democracy.  But something important has been missing from that discussion: the lessons that Reconstruction can teach us.

Reconstruction fundamentally altered the Constitution, amending our foundational charter to eradicate chattel slavery, guarantee equality, and protect voting rights.  What is less well known is that Reconstruction also changed the federal courts in seismic ways, as Congress restructured a Supreme Court that was systematically biased in favor of slavery.  Reconstruction is perhaps the most salient period of court reform in American history.

Dred Scott v. Sandford, the horrendous 1857 decision that said that Black people were not U.S. citizens, was the product of a federal judicial system gerrymandered in slavery’s favor.  Under 1837 federal legislation, slaveholding states had permanent control over the high Court.  Five of the nine circuits were in the slaveholding south, and one justice was appointed from each of the circuits.  It was a slaveholder’s Court that, as Representative John Bingham remarked, “had disgraced itself as a tribunal of justice.”

During Reconstruction, Congress employed three different strategies to reform the Court.

First, in the span of just six years, Congress repeatedly changed the size of the Court.  The composition of the Supreme Court would increase to ten in 1863, shrink to seven in 1866 to prevent President Andrew Johnson from filling any vacancies, and then increase once again to nine in 1869 during the presidency of Ulysses Grant.  Reconstruction reformers understood that the Constitution “does not fix the number of judges which shall constitute the Supreme Court; hence the number has at times been increased by Congress and again diminished at its pleasure.”  In fact, the size of the Supreme Court has always been set by Congress.

Second, Congress used its authority over the Supreme Court’s appellate jurisdiction to prevent the justices from hearing challenges to the constitutionality of the Reconstruction Act of 1867, which imposed military rule on the former states of the Confederacy.  In doing so, Congress successfully kept the Court out of one of the biggest legal battles of the day, and produced a preeminent example of congressional control of Supreme Court jurisdiction.  In the landmark 1869 case of Ex Parte McCardle, the Supreme Court upheld Congress’s decision to cut back the Supreme Court’s appellate jurisdiction, recognizing that “the power to make exceptions to the appellate jurisdiction of this court is given by express words” in the Constitution.

Third, Congress passed civil rights statutes to make real the Constitution’s promise of equal citizenship and expand the powers of the federal courts to vindicate constitutionally guaranteed rights, employing the enforcement powers contained in the Reconstruction Amendments.  Refusing to entrust the protection of equal citizenship to the Court that had decided Dred Scott, the new Amendments gave Congress the express power to safeguard fundamental rights and equality.

Congress used these new powers immediately.  As Southern states enacted Black Codes to strip Black people of their rights and establish slavery in another guise, Congress passed our nation’s first piece of civil rights legislation to annul these new enactments.  Insisting that Black people were entitled to the same basic civil rights “as is enjoyed by white citizens,” Congress used its express enforcement power to protect fundamental rights that were under attack.

Congress also expanded the powers of the federal courts in the name of freedom and equality.  Before Reconstruction, individuals could not sue in federal court or seek the remedy of habeas corpus to redress violations of constitutional rights by state actors.  Congress changed that, marking the greatest expansion in the power of the federal courts to vindicate constitutional freedoms in American history.  These historic statutes represent the most enduring legacy of Reconstruction’s court reforms.

Reconstruction thus provides a timely reminder that the Constitution gives Congress powerful tools to reform our federal courts.  Faced with a Supreme Court hostile to our Constitution’s text, history, and values, Congress has many ways to take back the Constitution and safeguard our most cherished constitutional rights.  It can change the size of the Court, regulate its proceedings, control its jurisdiction, and use its enforcement power to protect fundamental rights that the Court will not.

So what should Congress do?  Reconstruction’s broad vision of court reform is critical.  Much ink has been spilled on court expansion and term limits, but there is more to court reform than the composition of the Supreme Court.  While the possibility for enacting new legislation might be unlikely in the next two years, progressives should use this time to develop a multi-pronged approach to court reform.

First, Congress’s control over the Supreme Court’s jurisdiction and proceedings is key.  Right now, the Supreme Court has nearly unfettered freedom to select the cases it hears; under the rule of four, any four justices can vote to hear a case.  The Roberts Court has used this broad leeway aggressively to load its docket with cases selected to allow the conservative supermajority to pursue their ideological projects, particularly overruling precedents they dislike.  And the Roberts Court has employed the shadow docket to move the law to the right, all without the transparency and deliberation that is essential to the judicial process.  Congress can change this.  It can control the kinds of cases the Court can hear, increase the number of justices who must agree to hear a case or insist on a conflict in the lowers courts as a prerequisite to Supreme Court review, and limit the Court’s aggressive use of the shadow docket by mandating stringent standards for emergency relief.

Second, when the Court’s conservative supermajority rolls back fundamental rights and puts accountability further out of reach, as it did last term, Congress should do what it did during Reconstruction: enact legislation that safeguards basic rights and opens the courthouse doors to ensure the promise of justice for all Americans.  This is vital in the wake of the overruling of Roe v. Wade and the continuing evisceration of the Voting Rights Act.  It’s also necessary to redress all the ways the conservative supermajority of the Roberts Court has weakened our system of constitutional accountability, making it nearly impossible to hold government actors accountable when they abuse their immense power.  Accountability reform, such as ending qualified immunity and codifying a right to sue federal officers for constitutional violations, is an essential part of court reform.

None of this will be easy, of course.  But reforming the Supreme Court is perhaps the greatest civil rights issue of the day.  If we do nothing, the conservative supermajority will likely continue to strip away bedrock rights and gut landmark statutes passed to make our nation more free, equal, and just.  Progressives must convince Americans and their elected representatives that the Supreme Court’s conservative majority is dead wrong about the Constitution and that changes are necessary to restore the Court’s ability to serve as an impartial arbiter willing to respect the whole Constitution’s safeguards and promises.

When the Supreme Court abandons its obligation to respect our whole Constitution’s promises of freedom, equality, and democracy—as the Roberts Court has repeatedly done—Congress need not stand idly by.  The Constitution gives Congress broad powers to reform the federal judiciary and ensure that the Supreme Court upholds our fundamental constitutional ideals.  Reconstruction, a period in which Congress repeatedly exercised these powers, provides a model for court reform today.

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