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.