The Supreme Court’s decision last week to reverse the finding of a three-judge panel that Alabama must redraw its 2022 Congressional map after violating the Voting Rights Act — a ruling the Supreme Court reached without the benefit of full briefing and argument—has raised again the question of what could be done about the court’s use of the “shadow docket.” Here’s one answer: Congress should give the justices a filibuster.
The Constitution establishes a Supreme Court. It gives Congress the power to make exceptions to the court’s appellate review. Congress could use that power to give dissenting justices a way to block extraordinary action by the court without a super-majority concurring. The procedure would allow a justice to require that a super-majority agree on any decision affecting a lower court judgment taken outside of the ordinary process of full review — except the decision to grant review. Once invoked, the court would be blocked from staying or reversing a lower court decision, unless either a super-majority concurs, or a simple majority expressly affirms that under existing law, the lower court decision is “clearly erroneous.” Absent either vote, the case would be considered in the ordinary course. After briefing and argument, the court would then decide the case according to a simple majority vote.
The super-majority threshold should be set according to a realistic assessment of the ideological division on the court. Its purpose would be to assure that the minority has the ability to check, and at least slow, the actions of an activist majority. The current court is divided 6–3. The super-majority threshold to empower the court to act in an extraordinary manner should therefore be seven justices. The rule should be rarely invoked, and would avoid its own abuse by allowing a simple majority to overrule any filibuster if they are willing to affirm that the decision below was “clearly erroneous.” But absent that affirmation, the effect of the rule would be to secure to the minority the power to assure that changes in Supreme Court doctrine be effected in the ordinary manner — after full briefing and argument, through an opinion issued by the court.
Opponents to the filibuster in the Senate have no reason to oppose such a filibuster in the court. The virtue of a filibuster in both contexts is its ability to give a minority the chance to better be heard. The current Senate filibuster takes that good idea and perverts it, by giving a potentially tiny fraction of America the ability to completely block the actions of a majority. But the Supreme Court filibuster would not block change or evolution in the doctrine of the court. It would simply channel it to the ordinary process by which the court makes its decisions. This filibuster would not be a minority veto on the decision of a judicial majority. It would just give the minority a chance to assure that significant decisions follow regular order.
It is unfortunate that we have been brought to a position to make such regulation necessary. It is the court’s own behavior that has plausibly suggested non-judicial motivations. And the Senate’s gerrymandering of the confirmation rules has only increased the perception that the institution is now partisan rather than judicial. Were the court more judicious in its activism, the perception that the court needs restraining would be weaker. But a clear majority has signaled that it will use its power to effect substantial change in the court’s jurisprudence, through any means possible. That behavior violates a fidelity to role. Congress can address that violation by at least channeling judicial activism to a more transparent and traditional context.
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