Don’t Pack the Supreme Court, Dis-Empower It

In a paper published in the California Law Review, Ryan Doerfler of the University of Chicago Law School and Samuel Moyn of Yale University argue that discussion of how to reform the Supreme Court is at risk of closing prematurely because it is centered on either “court packing” or rescuing the Court from its regrettable slide into partisanship. The Article discusses how to enable democracy within a constitutional scheme. Instead of taking the Court’s power for granted, the authors suggest dis-empowering reforms. These would not guarantee advances in social democracy, but they would ensure that the battle for such advances takes place in the democratic arena. Doerfler and Moyn propose either stripping the Court of jurisdiction over certain legislation, or imposing a supermajority requirement for the Court to overturn acts of Congress. In an interview in Vox, Doerfler explains that “the Court can, by a simple majority 5-4 vote, declare a federal statute invalid. And then that’s it, under our system of judicial supremacy. Our basic idea is that Congress could impose a limit on the Supreme Court that says that the Court may only declare a federal statute unconstitutional by, let’s say, a 7-2 majority. Congress could pass a statute that imposes this requirement for federal legislation in general, or just for specific statutes.”