Experts Debate Reducing the Supreme Court’s Power to Strike Down Laws

Legal experts clashed on Wednesday over the wisdom of proposals to reduce the Supreme Court’s power to strike down democratically enacted laws, as President Biden’s commission on judicial branch overhauls held its first public hearing with witnesses.

But they spent limited time on the highest-profile idea associated with the panel — the push by some liberals to expand the Supreme Court, in response to Republican hardball moves that have left it with a 6-to-3 conservative majority even though Democrats have won the popular vote in seven of the past eight presidential elections.

While House Democrats have introduced a bill that would add four seats to the Supreme Court, it stands scant chance of being enacted under present political conditions.

Instead, the hearing largely focused on other ideas. In particular, the witnesses extensively debated ideas for limiting the court’s power of judicial review — such as by stripping its jurisdiction to hear constitutional challenges to particular laws, requiring a supermajority vote of the justices to strike down an act of Congress, or giving lawmakers the power to override rulings invalidating statutes.

Nikolas Bowie, a Harvard Law School professor, denounced the power of the Supreme Court to strike down laws enacted by Congress as an “antidemocratic superweapon” and said, “I encourage you to advocate for reforms that will abolish the practice.”

Mr. Bowie cited a 2012 ruling that hobbled Congress’s expansion of Medicaid coverage to millions of people, and one in 2013 that struck down a key part of the Voting Rights Act that had protected minority voters in jurisdictions with histories of discrimination. He noted that many foreign democracies function without a high court that wields such sweeping power.

But Noah Feldman, another Harvard Law professor, warned against reducing the Supreme Court’s power of judicial review. While he agreed that the court had sometimes issued bad decisions, he argued that reducing judicial checks on the legislative and executive branches would pose greater risks.

“We should not fall into the habit of assuming that judicial review is antidemocratic — judicial review is counter-majoritarian,” Mr. Feldman said. He added that if the United States has chosen to use the Supreme Court to protect democratic principles like equality and liberty, then it “is a democratic institution” even though justices are not elected.

Mr. Biden has charged the 36-member, ideologically diverse commission — which is led by Bob Bauer, an N.Y.U. Law professor who served as a White House counsel under President Barack Obama, and Cristina M. Rodríguez, a Yale Law School professor and former Justice Department official — with producing a report assessing ideas for changing the court.

The commission traces back to a wave of anger among liberals when Senate Republicans rushed to confirm President Donald J. Trump’s nominee to fill the seat left vacant by the September 2020 death of Justice Ruth Bader Ginsburg, even though they had refused to hold a hearing or vote on President Barack Obama’s nominee to fill the seat vacated by the February 2016 death of Justice Antonin Scalia on the argument that it was an election year.

Rather than clearly endorse or repudiate the court expansion proposal just ahead of the election, Mr. Biden punted in October by saying he would create a commission to assess potential changes to the judiciary. While the panel is not charged with making specific recommendations, its report may help set the stage for debate in Congress.

A few witnesses addressed court expansion, generally either arguing that it would delegitimize the court and inevitably lead to further expansions by Republicans, or portraying it as a “break glass” measure of last resort to deal with a hypothetical court that is consistently out of step with overwhelming popular opinion.

Among the ideas the witnesses engaged with more deeply: whether to change how the court selects which cases to hear in order to address the plummeting number it has decided in recent years, whether to reduce its ability to decide major legal issues without full briefings and arguments, and whether to replace lifetime tenure for Supreme Court justices with term limits.

“In an age of increasing polarization, there’s no question that Supreme Court nominations have become an almost entirely partisan affair, and this is going to potentially cause grave harm to the court’s legitimacy,” said Maya Sen, a Harvard public policy professor. “And I strongly encourage members of this commission to consider term limits, which could represent a powerful tool to reverse this trend.”

The term-limit discussion focused on a proposal to move to staggered, 18-year terms with seats regularly coming open every two years, rather than only when a justice dies or chooses to retire, perhaps coupled with mandating up-or-down Senate confirmation votes on nominees.

Such a change might help reduce the escalating partisan warfare over confirmations, argued Michael McConnell, a retired appeals court judge who is now a Stanford University law professor. He traced the fights back to the bitter confirmation battle in 1987 that defeated President Ronald Reagan’s conservative nominee, Robert Bork.

Rosalind Dixon, a University of New South Wales law professor, argued that 18-year terms were too long. Pointing to other countries that restrict the service of high-court judges, through either term limits or mandatory retirement ages, she said their terms are shorter. In Germany, for example, they are 12 years, she said.

Even as the debate played out, Samuel Moyn, a Yale Law School professor — who backed the idea of shifting power away from the court to “remedy a democratic deficit in our constitutional law” — suggested that the law professors on Mr. Biden’s commission and composing most of its witnesses should be humble about the scope of their influence. Ultimately, he said, the Constitution gives Congress broad authority to design the judiciary.

“Supreme Court reform is a political choice,” he said. “The Constitution leaves it up to us — not on this Zoom call, but as a people always experimenting with what it should mean to rule ourselves instead of letting others do so even when it saves ourselves some trouble. Pending enough political support, the choice to rule ourselves more democratically rather than continuing the transfer of excessive power to the Supreme Court is our best choice.”