Gordon L. Weil
The U.S. Supreme Court seeks a new record: to issue a ruling
rivaling the infamous 1857 Dred Scott decision
that said that Blacks could not be U.S. citizens.
That decision was a cause of the Civil War, which led to
constitutional changes intended to give African Americans equality with all other
Americans. In 1965, one hundred years
after the end of the Civil War, the Voting Rights Act
was adopted to finally ensure equality in access to voting.
Because some states, mostly in the former Confederate South,
had adopted laws and practices keeping Blacks from voting, Congress empowered the
federal government to approve state voting practices to ensure they were not
discriminatory and required states to design congressional districts that would
not dilute minority voting.
The Supreme Court, controlled by a conservative majority of
six justices, decided
that federal supervision of states to prevent discriminatory districting had
run its course and should end. Virtually
instantly, some states acted to reduce the possibility of Blacks being elected.
Now, the same Court majority seems ready to decide that the anti-discrimination
requirement imposed on states is also outmoded.
Ignoring the effects of its earlier decision, it is poised to hollow out
what remains of the historic Voting Rights Act.
If not racist, such a decision would reveal a remarkable indifference to
American history.
The media has chosen to focus on the effect on the
Democratic Party, supported by most Black voters, forecasting it will lose
seats in Congress. At a time when the
Democrats might gain control of the House, the Court may assure the continuation
of a GOP House, the subservient backer of the powerful president the Court has created.
But the focus on elections misses the setback to the equal
treatment of African Americans, leaving them once again victims of the after effects
of the nation’s “original sin” – slavery.
The pending decision could be deeply divisive, just as was Dred Scott. Of course, there will be no armed conflict,
but national unity could be severely tested.
With Congress having fallen in line behind an increasingly
powerful president, the Court has become the U.S. legislature. Six conservatives have assumed the power to
amend what may be one of the most important laws ever adopted in the nation’s
history.
The Supreme Court’s power is not derived solely from the
Constitution, but from an understanding among the early Federalists that the
Court should have the authority, in the words of the key
1803 judicial decision, to “say what the law is.” This is judicial review, with the last word
on the law held by the Court.
This power differs from the British system,
where the last word on the law lies with Parliament and the courts cannot reverse
its decisions.
Judicial review should be changed. Proposals to depart from the long-used approach
might be written off as impractical or unrealistic, but the Trump regime has dangerously
abused the concept. Thinking outside the
box Trump is creating has become critically important.
The most obvious change, but also the most unlikely, would
be to amend Article III of the Constitution to remove this power from the
Court.
But there are other measures available to Congress that are less
extreme and easier to achieve. This
column has explored them. They would
require only an act of Congress with the assent of the president.
The Court could be enlarged to allow the president to appoint
justices creating a majority more responsive to the will of Congress and to the
people. Abraham Lincoln did it, and
Franklin D. Roosevelt’s proposal to pack the Court brought “a
switch in time that saved nine.”
Short of enlargement, the number of justices on the Court
could be temporarily increased. Congress
now creates temporary
slots on the federal appeals and district courts. They are filled by lifetime appointees who
later move into the permanent positions as they are vacated. This could be done at the Supreme Court to
allow its steady renewal.
Temporary slots are often created because the burden of the caseload
has grown. The Supreme Court handles
many fewer cases than previously, so perhaps it needs some help. The use of temporary slots would allow for a
smoother evolution from a Court dominated by the appointees of one president to
those selected by a successor.
Even without expanding the Court, the Constitution gives
Congress control over its jurisdiction. It can limit the Court’s jurisdiction
over certain issues. The Court has accepted
such legal limits. A restriction could
be extended to include congressional districting cases.
Another method to limit the Court’s power would be a hybrid
of the American and British systems. The
Court could still decide on constitutionality, but could be overridden by a
required supermajority procedural vote, like the Senate filibuster, or two congressional
votes separated by a designated delay period.
Any of these changes may require a strong Democratic
majority controlling Congress and a favorable president. If the Supreme Court chooses to gut the
Voting Rights Act, the Democrats could make Court reform a central part of
their platform.
