Federal Courts and Nominations

RELEASE: How Do We Fix an Ailing Court? Reconstruction Provides Critical Lessons

WASHINGTON – Today, Constitutional Accountability Center is releasing new scholarship by CAC Civil Rights Director David Gans—forthcoming in 2023 in the Lewis and Clark Law Review—that tells the largely forgotten story of court reform during Reconstruction, which was perhaps the most salient period of court reform in American history. Gans shows how Reconstruction’s court reforms provide a model for court reform today. On the release of this new scholarship, Gans said:

The conservative supermajority of the Roberts Court continues to do major damage to the Supreme Court’s legitimacy as an impartial constitutional arbiter. In this moment, progressives should think boldly about what genuine court reform entails. Understanding the story of how the Reconstruction Congress utilized its powers to reform the federal judiciary is critical to this endeavor. When the Supreme Court runs roughshod over our national charter, Congress need not sit on the sidelines. The Constitution gives it powerful tools to reform our federal judicial system and to ensure that our federal courts—including the Supreme Court—uphold the ideals that lie at the core of our Constitution, including liberty and equal justice under law. Reconstruction, a period in which Congress repeatedly exercised these powers, provides a model for court reform today.

Read the new Issue Brief here: https://www.theusconstitution.org/think_tank/issue-brief-court-reform-and-the-promise-of-justice-lessons-from-reconstruction/.  An excerpt:

Reconstruction’s model of legislative constitutionalism has three core components relevant to today’s court reform debate. Faced with a Supreme Court hostile to our deepest constitutional values, Congress can (1) change the composition of the Court, (2) alter its jurisdiction and regulate its proceedings, and (3) use its express enforcement powers to protect basic rights and equal citizenship—including by enforcing constitutional commitments that the Supreme Court will not.

. . .

The Reconstruction Congress employed each of these devices to reform the federal judiciary: it enacted (1) structural reforms to change the size of the Supreme Court, first expanding the Court to ten justices, then shrinking it to seven justices to prevent President Andrew Johnson from filling any vacancies, and then finally expanding it to nine justices during the presidency of Ulysses Grant; (2) “disempowering” reforms to strip the Supreme Court of jurisdiction over some of the most charged cases of the day, cases that sought to challenge the very foundation of Reconstruction; and (3) “justice” reforms that expanded the jurisdiction of the federal courts to vindicate constitutionally guaranteed rights and enforce the promise of freedom, justice, and equality at the core of the Reconstruction Amendments.  Despite some caustic attacks on the Supreme Court, Reconstruction witnessed the greatest enlargement in the power of the courts in American history, as Congress reformed our judicial system, often to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments, to ensure that federal courts could hold states and localities accountable for violating constitutionally guaranteed rights.



“Court Reform and the Promise of Justice: Lessons from Reconstruction,” CAC Issue Brief, David Gans, November 2022 (forthcoming in Lewis and Clark Law Review, 2023): https://www.theusconstitution.org/think_tank/issue-brief-court-reform-and-the-promise-of-justice-lessons-from-reconstruction/

Testimony of Elizabeth Wydra & David Gans to Presidential Commission on the Supreme Court of the United States, Aug. 20, 2021: https://www.theusconstitution.org/wp-content/uploads/2021/08/CAC-shadow-docket-commn-testimony-FINAL.pdf

“There’s more to repairing federal courts than Supreme Court expansion,” Elizabeth Wydra, The Hill, February 10, 2021: https://thehill.com/opinion/judiciary/538176-theres-more-to-repairing-federal-courts-than-supreme-court-expansion


Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.


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