The United States may soon find itself in the uncomfortable position of having a Supreme Court whose ideological majority is at odds, on a number of key issues, with well more than half the country. Depending on the outcome of the next election, it may be similarly at odds with congressional majorities and a new president. Anticipating the potential impending crisis of an activist Court reshaping American law and striking down legislation, many of the current Democratic presidential candidates have suggested restructuring the Court, and advocacy groups are pushing to expand its size to allow for the appointment of additional justices.
These ideas for structural reform (some of which I have proposed) get a lot of attention. But there is another way to rein in the Court’s power. Congress could pass a Congressional Review Act for the Supreme Court, which would enable it to overturn Court decisions on legislative matters with greater speed and ease.
Something similar already exists for executive-branch decisions. The Congressional Review Act (CRA), passed in 1996, allows Congress to review federal-agency regulations and overturn them through a “fast track” process, in which both houses of Congress pass a resolution on a given regulation through an expedited process and the president signs it. The idea behind the CRA is simple: Congress makes the laws, and agencies implement them. If Congress doesn’t approve of how an agency has implemented a law, it should be able to review and reject the agency’s approach.
A Congressional Review Act for the Supreme Court would be similar, but it would apply to Court decisions that interpret legislation. Such a law would be constitutional, because Congress already has the power to overturn these decisions, by simply passing new laws.
It’s worth emphasizing that this power only applies to Supreme Court decisions that interpret statutes, not those that interpret the Constitution. But the majority of cases that come before the Court do not concern constitutional matters. Of the 71 cases heard by the Court during its 2017–18 term, for example, only 25 involved the Constitution. Forty-six cases—almost 65 percent—were about other issues.
These cases are often extremely important. Through its recent interpretation of the Federal Arbitration Act, the Court restricted the ability of workers to bring class-action lawsuits. In 2015, it interpreted the Clean Air Act to overturn the Obama Administration’s regulation of hazardous pollutants. The Court case challenging the Trump administration’s travel ban involved questions of statutory interpretation, as does this year’s case on the meaning of the term “sex” in Title VII of the Civil Rights Act.
Despite the significance of these cases, the hurdles to passing legislation of any kind make revisiting Court opinions a challenge, and some of the cases fly under the political radar. All too often, the Supreme Court acts as the final voice on issues of policy that are, under our constitutional system, squarely within the purview of Congress.
A CRA for the Supreme Court would address these problems. Here’s how it would work: If the Court issued a decision interpreting a statute or regulation, Congress would have 30 days to vote on whether to open a reconsideration process. If Congress voted yes, the speaker of the House, the Senate majority leader, and the minority leaders would appoint a special committee in each chamber (with proportional party membership) to design a legislative fix for the full body to vote on within the next 30 calendar days. The bill would then go to the other house, where it would be voted on within 10 days through a privileged, fast-track process, which would avoid common legislative snags like the filibuster and committee hearings. The president would then sign the law or veto it, as with any ordinary piece of legislation.
Practically, such a process would operate only in limited situations. There would have to be a majority in both the House and the Senate to vote for the new proposal, and the president would have to sign the legislation. This means that the CRA for the Supreme Court would likely be effective only when the government was unified under one party or when there was strong bipartisan consensus. This minimal review is desirable; a popular majority or bipartisan political consensus would be a precondition for deciding that the Court was out of step.
A CRA approach would also be likely to make U.S. public policy more responsive to the views of the electorate. Despite the current representation problems in Congress—from the skewed structure of the Senate to gerrymandering in the House—Congress is still more representative of the public than the unelected, lifetime-serving Supreme Court. Forcing a vote through expedited consideration would prevent interest groups and lobbyists from quietly killing legislative reforms. There would be a public vote, members would have to take a position, and voters would be able to hold them accountable.
One of the concerns with a CRA for the Supreme Court is that it might push the Court to become less charitable to Congress. The justices might rein in their decisions for fear of disrupting policy or wading too far into politics, because they know Congress could not practically act (say, because of partisan gridlock in Congress). For example, some analysts have suggested that Chief Justice John Roberts sided with the liberal justices in some of the Obamacare cases for this reason. The CRA for the Supreme Court would give the Court less reason to be charitable, because Congress would get a quick bite at the apple to overturn decisions.
It is certainly possible that the Supreme Court would react in this way—but it is unclear how big a change that would be from the way things work now. At present, the justices are only infrequently accommodating. Indeed, the Court has even said explicitly that Congress could overturn decisions in some politically controversial cases, knowing that Congress would not, in fact, be able to do so. The choice going forward is between a world in which the Court might be magnanimous in one or two cases and a world in which Congress can reassert its constitutional powers and assess (and possibly overturn) a large number of Court decisions each year.
A related problem is that an activist Court might start to rely more on constitutional claims, because they would not be covered under the fast-track process. But with every unpopular constitutional decision, the Court would be inviting greater popular scrutiny and increasing the pressure for structural reforms like Court restructuring and expansion.
Unelected judges on the Supreme Court were never intended to be policy makers. Congress—the most representative branch, the one closest to the people—was meant to drive basic questions of public policy. Congress—the most representative branch, the one closest to the people—was meant to have this power. Formally, it still does. But the reality is that the Court plays a large role in the policy process because of how difficult it is for Congress to act. A Congressional Review Act for the Supreme Court would help revive the legislative branch’s proper role in our constitutional system.