A rule-of-law wish list for an incoming Harris Administration

The original text of the Constitution gives Congress the power to regulate the appellate jurisdiction of the federal courts, including the Supreme Court. On the optimistic assumption that Kamala win Tuesday’s election and Trump’s next coup attempt fails, it’s time that Congress start using that power, which when it excludes court jurisdiction over some area of law is known by the somewhat pejorative term, “jurisdiction stripping.”

[I]n the 1810 case Durousseau v. United States, Chief Justice John Marshall accepted the validity of legislation limiting the Court’s jurisdiction but suggested that, in the absence of such congressional action, the Court’s appellate jurisdiction would have been measured by the constitutional grant. However, later cases have generally taken the view that the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress. [my emphasis] (1)

Why is this obtuse legalese relevant to today’s politics? Because to protect basic rights, including voting rights and the right to abortion, Congress has to remove the power of judicial review from today’s rogue Supreme Court over federal legislation protecting those rights.

Congress has used their power to regulate Court jurisdiction, for instance in this Reconstruction case:

Congress has on occasion used its power to regulate Supreme Court jurisdiction to forestall a possible adverse decision from the Court. In Ex parte McCardle, the Court granted certiorari to review the denial of a petition for a writ of habeas corpus from a civilian convicted of acts obstructing Reconstruction. Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress overrode the President’s veto to enact a provision repealing the statute that authorized the appeal. Although the Court had already heard argument in the case, it dismissed the action for want of jurisdiction. The Court stated, We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. Since its decision in McCardle, the Supreme Court has upheld numerous legislative limits on its jurisdiction.

For liberals who just want to elect a Democratic President so “we can go back to brunch” and not worry about challenges to democracy and the rule of law or similarly bothersome issues, the very thought that Congress should restrict Supreme Court jurisdiction will be horrifying. Goodness me! If the Democrats do that to protect basic rights, then the Republicans might do it, too, to protect some bad legislation they want!!

But really, anyone who has paid attention to American politics for the last 20 years or so, even the last 10 years, should not need to wonder whether the Republicans will wait for a Democratic precedent to do something they want to do to protect their billionaire owners or their most rabid rightwing voters. They don’t. They don’t care and wouldn’t hesitate to use that power if they thought they needed to. From the Gingrich Revolution to the 2021 Capitol insurrection to the New Bund rally at Madison Square Garden this week, they care about what they can get away with. They’ll blame the Democrats for whatever they do. But they don’t need permission or precedents from Democrats to do it.

So here’s my wish list for immediate legislative action if the Democrats have majorities in both Houses. Five of which relate directly to defending liberal democracy, including the rule of law. And Harris should attempt them even if they don’t control the two Houses. All of them will require the Senate to either abolish the filibuster rule altogether (which can be done with 51 votes) or exempt these individual measures from the filibuster rule.

1. Federal law establishing the right to abortion care in all of the United States. Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

2. Federal law restoring the provision of the Voting Rights Act overturned by the rogue Roberts Supreme Court, with legal requirements that legislatures in states who hold popular elections for President must respect the result in their selection of Presidential Electors., Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

3. Federal law stating clearly that the President has no immunity to violate the law. Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

4. Federal law declaring that for the purposes of regulations on campaign contributions, corporations cannot be considered persons, and establishing campaign contribution limits and strict reporting requirements. Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

5. Strict, legally binding ethics regulations for the Supreme Court with substantial criminal penalties for violations. Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

6. “Card check” legislation facilitating union organization. Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

Codifying the abortion rights included in the now-defunct Roe v. Wade decision and card check legislation were campaign pledges of Barack Obama in 2008. His Administration never made a serious attempt to do either.

A renegade Supreme Court in the Dred Scott decision of 1857 effectively ended the possibility of ending or even containing slavery without a bloody civil war. The Supreme Court in the 1930s was blocking FDR’s New Deal legislation on frivolous grounds until Roosevelt made a serious effort to expand the Court. And entrenched reactionary judiciary that doesn’t respect legitimate laws or normal judicial procedures includes taking full account of relevant precedents can undermine the rule of law, just as a bad legislature or lawless Executive Branch can.

A Harris Administration will need to take seriously reigning in the rogue judiciary, especially including the Supreme Court.

And, yes, that will require back-to-brunch Democrats to get out of their previous comfort zone on the subject.

Rhode Island Sen. Sheldon Whitehouse has been trying to raise attention to the drastic threat to the rule of law represented by the current rightwing takeover of the federal judiciary. Here he addresses the Supreme Court’s appalling ruling on Presidential immunity from the law. (2)

Notes:

(1) ArtIII.S2.C2.6 Exceptions Clause and Congressional Control over Appellate Jurisdiction. US Congress website. <https://constitution.congress.gov/browse/essay/artIII-S2-C2-6/ALDE_00013618/> (Accessed: 2024-310-10).

(2) Sen. Whitehouse Lambasts Supreme Court Presidential Immunity Decision in Judiciary Hearing. Senator Sheldon Whitehouse YouTube channel 09/24/2024. <https://youtu.be/zXwCdWcxslo?si=Vjpix-u9boBmxVGE> (Accessed: 2024-31-10).