ISSUE BRIEF: Court Reform and the Promise of Justice: Lessons from Reconstruction


Lewis and Clark Law Review (Forthcoming 2023)

The Supreme Court is broken. How should we fix it? This Article argues that Reconstruction, a period in American history when the role of the Supreme Court in American life was hotly debated and Congress repeatedly took steps to reform the federal courts, provides important and underappreciated lessons.

Reconstruction’s model makes clear that when the Supreme Court runs roughshod over constitutional rights, Congress need not sit on the sidelines. Rather, the Constitution gives it powerful tools of reform. 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. During Reconstruction, Congress employed all three of these strategies. It enacted structural reforms to expand the size of the Court, disempowering reforms to strip the Court of its jurisdiction over highly charged cases, and justice reforms that sought to make the federal courts partners in Reconstruction’s project of ensuring true freedom and equal justice, opening the federal courthouse doors wide open to rein in state abuse of power.

Of these, Reconstruction’s justice reforms have proved to be the most enduring, and they provide a model for court reform today. When the Court’s conservative supermajority eviscerates fundamental rights, Congress can pass statutes to do what the Supreme Court will not: uphold our core constitutional commitments.

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