SCOTUS's Brazen Power Grab Guts Voting Rights

The renegade Supreme Court exhibits an over-exercise of power, open contempt for the laws Congress passes, and a heavy partisan tilt. It doesn't have to be this way

This week has underscored a brutal reality of our teetering constitutional system: a renegade, partisan Supreme Court ignoring the power and role of Congress, prevaricating about history and the plain language of the Constitution, rewarding Republican presidents while constraining Democrats, its members violating fundamental ethics that apply to every other federal judge. The Roberts Court, led by arguably the worst Chief Justice in history, has engaged in a brazen power grab. Many reforms have been floated if and when the opportunity occurs to rein in the renegades, from term limits to court enlargement. They may not be enough.

The day before the Supreme Court’s Callais dishonest and outrageous decision eviscerating what remained of the Voting Rights Act, the six Republican justices celebrated by attending Trump’s state dinner for King Charles — in what is almost certainly the first state dinner ever with a strictly partisan guest list. In September 2021, standing next to her Senate benefactor Mitch McConnell, who had destroyed Senate norms by jamming through her confirmation eight days before the 2020 election, Amy Coney Barrett said, “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” proving the opposite.

Elena Kagan’s dissent, read from the bench, was powerful and gripping. Election law scholar Rick Hasen’s description of the dishonesty of the decision is equally powerful: what is implied in the decision written by Sam Alito, “that Congress cannot do anything to protect minority voting rights short of banning intentional discrimination despite the Fourteenth Amendment’s equal protection guarantee, despite the Fifteenth Amendment’s ban on race discrimination in voting, and despite the fact that both amendments explicitly give Congress the power to enforce the measures by ‘appropriate legislation.’”

The Callais decision, of course, is part of a pattern of the Roberts Court blowing up voting rights; destroying a century of campaign finance laws in direct violation of a promise made by John Roberts to respect stare decisis and decide cases on the narrowest basis possible; making independent regulatory agencies direct partisan arms of the president; cosseting the rich and powerful corporations, and unleashing Trump with the ahistorical and bizarre immunity decision that would have left the Framers bewildered that the third branch of government would undermine the first branch of government to create a dictator from the second branch of government.

I have supported term limits for decades, and still do, but actually implementing it is challenging—do you include existing justices? If not, how do you phase in term limits so that ultimately each president has two vacancies to fill—without it taking many years to implement successfully? What about enlarging the Court? The reality is that the packing was done by Mitch McConnell blocking Merrick Garland from even a hearing during the Obama administration (approximately four years before the Barrett debacle). If fundamental norms had been followed, there would be five justices nominated by Democratic presidents.

Supreme Court guru Steve Vladeck has made good points about the dangers of court enlargement — among them, that it could create a likely enlargement war every time there is a change in power — but it is still a powerful idea. When the Court was set at nine, there were nine circuits; now there are thirteen. The need to rebalance the Court as soon as possible makes the risk of future retaliation worth taking.

But there is another, bolder move to consider. When I taught American Government, I would take students to the National Archives to see the actual original Constitution, encased in glass. Looking at it directly, they could see the physical articles. Article I, the Congress, was twice as long as Article II, the Executive, which in turn was twice as long as Article III, the Judiciary. Three equal branches—but it was clear which branch was Number One, in every respect. Congress has the power to declare war and the power of the purse, the two most powerful elements of government. The president can veto bills, but Congress can override. Congress can impeach and remove a president; the president has no power to remove members of Congress.

Now to Article III. The Framers did not expect that the judiciary would usurp the powers of the first branch. They created a Supreme Court and gave Congress power to establish lower courts as well. They gave the Supreme Court limited original jurisdiction: laws affecting Ambassadors and ministers, cases of Admiralty and maritime jurisdiction, between states, between a state and a citizen of another state, between citizens of different states, citizens of the same state claiming lands of different states, and between a state or its citizens and foreign states or their citizens. But here is the key clause: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations, as the Congress shall make.”

It is true that the power accumulated by the Court goes back to Justice Marshall and Marbury v. Madison, and the other branches, over time, accepted the role of the Court to interpret the Constitution. But that acceptance came with an expectation that that role would not be abused, certainly not the way it has with the Roberts Court. Congress has the power, and should use it. It is time to consider taking back some of the jurisdiction Congress has ceded to the Supreme Court, including its appellate authority in areas like voting, elections, districting, campaign finance, and congressional power, along with such issues as the right to marry and to control one’s own body.

Create a special appeals court, perhaps consisting of the chief judges of the thirteen appeals courts, to act as the final area of appeal in such cases. Even a serious threat to do so would be a strong signal to these renegade Supremes to draw back from their over-exercise of power, their open contempt for the laws Congress passes, and their heavy partisan tilt. No option should be off the table.

Norman Ornstein is a renowned political scientist, co-host of the podcast “Words Matter,” and author of books, including “It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism.”

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