We have been discussing calls to pack the Supreme Court and President-Elect Joe Biden pledging to assemble a commission of experts to fundamentally change the Supreme Court after it added another conservative justice to the majority. Boston College Law Professor Kent Greenfield is already putting forward one such proposal: just replace the Supreme Court on constitutional questions. Greenfield calls for the establishment of a constitutional court that would strip the Supreme Court of the ability to rule on such question because “the Supreme Court needs a breather.” That “breath” however only became a perceived need for many academics when the conservative conservative on the Court grew to 6-3.
In an op-ed for the New York Times, Professor Kent Greenfield argued that “the Supreme Court has become too partisan and unbalanced to trust it with deciding the most important issues of our day.” Of course, the Court reached that line of partisanship when a solid conservative majority emerged. It was entirely trustworthy when liberals held a majority in prior years or a functional majority existed with justices like Souter and O’Conner on critical issues. Many Americans (roughly half) and judges support the conservative approach of the Court’s majority. However, Democrats have declared that a majority of justices with conservative jurisprudential views is now grounds for stripping the court of cases or jurisdiction or even pack the court with a liberal majority.
Greenfield calls this court stripping plan a “reboot.” He would allow the Supreme Court to continue to interpret statutes but bar it from ruling on constitutional issues. Instead, he would create a new court with a new majority for constitutional cases.
European countries have such specialized courts. We have never embraced that approach and it was not seriously considered until the current Supreme Court shifted toward a solid conservative majority. Indeed, Greenfield is not proposal the adoption of the European model because he believes that it is inherently superior. Rather, he is suggesting the change as a temporary change in light of the conservative majority making “constitutional mistakes.” In other words, change the court to change the outcome. The “mistakes” are rulings that academics like Greenfield disagree with.
The response is replace it. Not forever mind you. Greenfield would give the new court a sunset of 20 years — just enough time to change the majority. The “breather” would presumably allow the Court to resume hearing constitutional case if the majority shifted or the Congress could extend the use of the alternative court — and alternative majority. Indeed, Greenfield seems to justify this radical proposal as a type of corrective lesson. Stripping their ability to rule on the Constitution is defended as “pushing the Supreme Court to become the dispassionate body that the Constitution’s framers envisioned.” This is all designed to avoid “constitutional mistakes” on a Court with a conservative majority.
Greenfield notes that this change could be pushed through without an amendment — a key element to Democratic proposals since polls show the public is overwhelmingly opposed to changing our highest court.
This is not the first time that Professor Greenfield has adopted a rather one-sided view of constitutional issues. He received a great deal of coverage in claiming in an op-ed that Senate Majority Leader Mitch McConnell (R., Ky) was violating at least two oaths in this handling of the Trump impeachment by declaring his support for Trump in advance. He also noted McConnell pledge to work with the Trump team. I previously criticized senators on both sides for declaring their votes before the trial (here and here). Greenfield however only denounces McConnell despite the fact that Democratic senators pledged to vote against Trump before impeachment articles were ever approved by the House. Greenfield also repeats the view of Professor Michael Gerhardt that senators had never before coordinated an impeachment trial with a White House. I previously challenged the historical basis for that claim.
The New York Times column is likely par for the course as Biden carries out his pledge for his commission of experts. To Greenfield’s credit, he does not hide the real problem — and the impetus for these sweeping changes. The problem is that a majority of the Court does not adhere to the ideology of most law professors. It is therefore necessary to change it until it learns “to become the dispassionate body that the Constitution’s framers envisioned.” Well, at least what most law professors envision.
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