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A powerful tool to take on the Supreme Court — if Democrats use it right

A powerful tool to take on the Supreme Court — if Democrats use it right
© Bonnie Cash

As Senate Republicans rushed to fill Justice Ruth Bader GinsburgRuth Bader GinsburgMcConnell backs Garland for attorney general A powerful tool to take on the Supreme Court — if Democrats use it right Fauci says he was nervous about catching COVID-19 in Trump White House MORE’s seat in the waning days of the 2020 election, the once-radical notion of reforming the Supreme Court went mainstream. Joe Biden pledged to create a court-reform commission if Republicans confirmed Judge Amy Coney BarrettAmy Coney BarrettThe Jan. 6 case for ending the Senate filibuster Laurence Tribe: Justice Thomas is out of order on 2020 election McConnell backs Garland for attorney general MORE, and then-Minority Leader Chuck SchumerChuck SchumerHillicon Valley: Biden signs order on chips | Hearing on media misinformation | Facebook's deal with Australia | CIA nominee on SolarWinds House Rules release new text of COVID-19 relief bill Budowsky: Cruz goes to Cancun, AOC goes to Texas MORE (D-N.Y.) vowed that “nothing [would be] off the table.”

Four months later, Justice Barrett sits on the Supreme Court, President BidenJoe BidenBiden 'disappointed' in Senate parliamentarian ruling but 'respects' decision Taylor Swift celebrates House passage of Equality Act Donald Trump Jr. calls Bruce Springsteen's dropped charges 'liberal privilege' MORE is staffing his commission, and Majority Leader Schumer faces a difficult question: What now?

Democrats have little time to act — and the question of which plan to pursue looms large. This debate typically revolves around one task: identify the policy that best balances political reality with legal rigor.  Why? Because Congress will get only “one shot” before the court itself weighs in. And by then it may be too late for Congress to start over. 

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This legal-political balancing act poses a dilemma: popular plans get watered down to preempt legal concerns while controversial policies dominate the debate based on their constitutional pedigree. For example, Fix The Court’s plan would require justices to take senior status after 18 years (a widely popular approach), but the plan exempts sitting justices to avoid potential legal issues. Take Back the Court, meanwhile, argues that packing the court is the only viable option because anything else might be invalidated.

But what if this choice between popularity and predictability is a false one? Rather than settling on one plan, Congress instead should use a rare legislative tool known as “backup law” to layer its policy preferences from most politically desirable to most constitutionally secure. If the court holds the first preference unconstitutional, the second will automatically take its place — and so on. 

For example, Congress’s first policy could require justices (including sitting justices) to take senior status after 18 years with confirmations scheduled to take place every two years. Justices Clarence ThomasClarence ThomasLaurence Tribe: Justice Thomas is out of order on 2020 election Supreme Court won't review Pennsylvania GOP election lawsuits A powerful tool to take on the Supreme Court — if Democrats use it right MORE and Stephen BreyerStephen BreyerSupreme Court weighs police power to conduct warrantless searches A powerful tool to take on the Supreme Court — if Democrats use it right Supreme Court clears way for extradition of alleged Ghosn escape plotters MORE would take senior status immediately (with their seats filled by President Biden in 2021 and 2023, respectively), and Chief Justice John Roberts and Justice Samuel AlitoSamuel AlitoLaurence Tribe: Justice Thomas is out of order on 2020 election Supreme Court won't review Pennsylvania GOP election lawsuits A powerful tool to take on the Supreme Court — if Democrats use it right MORE would be replaced in 2025 and 2027, respectively, by the winner of the 2024 election. And if the court held this plan unconstitutional? A backup provision could automatically create new seats at regular intervals instead.

This approach puts new options on the table. Court-packing advocates might accept a nine-member court if the rotation of active service started immediately, and those opposed to packing might be open to adding seats if it occurred only if the court struck down their first-choice policy. 

While backup clauses are rare in legislation, they are not unprecedented. In Bowshar v. Synar, the Supreme Court held a provision in the Gramm-Rudman-Hollings Act unconstitutional and then observed that the act itself “explicitly provide[s] ‘fallback’ provisions … that take effect ‘[i]n the event … the [challenged] procedures … are invalidated.’” Thus, the backup law was “fully operative as a law.”

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With such a powerful tool, some might wonder what else backup law can do: Could Congress threaten the court into upholding constitutionally suspect laws by pairing them with unrelated and unpalatable backup provisions? 

Here, discretion is the better part of valor. Backup law is generally constitutional, but a clause designed to coerce the court could unconstitutionally interfere with the judiciary’s decisional independence. In National Federation of Independent Business v. Sebelius, for example, a wide majority (including Justices Breyer and Elena KaganElena KaganA powerful tool to take on the Supreme Court — if Democrats use it right Supreme Court grants Alabama death row inmate's request for pastor Supreme Court lifts some restrictions on California church services MORE) held Congress could not use its Spending Clause power to “coerce” states into accepting the Affordable Care Act’s Medicaid-expansion provisions. It’s easy to imagine this court announcing a similar “anti-judicial-coercion” principle.

In another case, Patchak v. Zinke, only four justices — Thomas, Breyer, Alito and Kagan — said Congress could remove jurisdiction over a pending case to ensure the case would be dismissed. Ginsburg and Justice Sonia SotomayorSonia SotomayorJudge whose son was killed by gunman says Sotomayor also targeted A powerful tool to take on the Supreme Court — if Democrats use it right Supreme Court grants Alabama death row inmate's request for pastor MORE thought the suit should be dismissed on other grounds, and Roberts, former Justice Anthony Kennedy and Justice Neil GorsuchNeil GorsuchThe Jan. 6 case for ending the Senate filibuster Laurence Tribe: Justice Thomas is out of order on 2020 election McConnell backs Garland for attorney general MORE would have ruled the law an unconstitutional intrusion upon the judicial power. What would the court do today? I don’t know — but it’s hard to count to five when you need to keep Thomas and Alito, gain Justice Brett KavanaughBrett Michael KavanaughThe Jan. 6 case for ending the Senate filibuster Laurence Tribe: Justice Thomas is out of order on 2020 election LIVE COVERAGE: Senate set to consider Garland for AG MORE or Barrett, and convert Sotomayor.

A broad ruling against a coercive backup law could cause collateral damage, casting doubt upon legitimate fallback provisions and making them politically unpalatable for the foreseeable future. To give this policy-layering tool a chance to get off the ground, better to build backups for now that are germane and move incrementally toward settled constitutional alternatives. 

Should the Supreme Court have this much power in the first place? Maybe not. But if we want a less intrusive court that shows more respect for democratic choices, court reform is an important place to start. And fallback law can help make it happen — if Democrats use it right.

G. Michael Parsons is an acting assistant professor at New York University School of Law and represented one of the parties in Patchak v. Zinke. Follow him on Twitter @GMikeParsons.