“The Supreme Court Needs A Breather”: Law Professor Calls For Replacement of Supreme Court With A “Specialized Court” For Constitutional Questions

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 TimesProfessor 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.

144 thoughts on ““The Supreme Court Needs A Breather”: Law Professor Calls For Replacement of Supreme Court With A “Specialized Court” For Constitutional Questions”

  1. This is the purpose of the SCOTUS along with settling disputes between the states! Isn’t this a convenient opinion from the left! When it is out of your control, shift it to someone else who you can control… What a LOAD!

    1. This is the year of thinking dangerously. Even suggesting the Supreme Court not rule on constitutional questions for any reason is ludicrous, insulting and presupposes that these justices will not look at cases objectively and analytically according to established methods of constitutional interpretation. Of Course, Greenfield caters to a radical left audience devoid of any true knowledge as to how constitutional law works and the precedents upon which it is based.

  2. Ruling on Constitutional questions is the whole point of the SCOTUS! LOL! Democrats are clowns. But, in today’s America, such a patently absurd idea might just come to fruition!

  3. Slightly off topic.
    Let Mathematics do the talking.
    Political talk leads to total confusion.
    Listen to Dr. Shiva Ayyadurai MIT Professor.

  4. There is literally nothing wrong with diGenova’s comments. Makes perfect sense and frankly….Maxine Waters, Nancy Pelosi, Frederica Wilson, Charles Schumer, and the hundreds of others in the US Congress inciting violence against Americans for 4 long years….they have it coming

    “Anybody who thinks the election went well, like that idiot Krebs who used to be the head of cybersecurity. That guy is a class A moron. He should be drawn and quartered. Taken out at dawn and shot.”

    https://www.realclearpolitics.com/video/2020/11/30/joe_digenova_chris_krebs_a_class_a_moron_should_be_taken_out_at_dawn_and_shot.html#!

    1. Hyperbolic political speech protected by the first amendment, or literal incitement to justifiable acts of violence against Congress in your opinion, Kincaid?

      As it stands, it sounds like you are making the case for rigorous gun control, including background check rule-outs for the seditious and/or psychiatrically compromised.

      diGenova should quickly and completely apologize:

      https://lawandcrime.com/2020-election/trump-campaign-lawyer-joe-digenova-could-be-disciplined-for-stunning-statement-that-chris-krebs-should-be-shot/

      1. more speech censorship for lawyers, wonderful!

        push the envelope fast and hard, as the end of free speech means the beginning of kinetic rebellion!

        billionaires are the enemy

        Saloth Sar

        1. I believe in wealth floors and ceilings for my utopian vegan state, should it one day organize into existence somewhere on planet Earth, but I am not sure a millionaire wealth ceiling is consistent with US culture. What is your evidence that billionaires are “the enemy” of US culture? Surely the philanthropy of Bill Gates and Warren Buffett gives you pause.

      2. CTHD says As it stands, it sounds like you are making the case for rigorous gun control, including background check rule-outs for the seditious and/or psychiatrically compromised.

        Jason is likely referencing how the left never Commit To Honest Discussion, practice relativism 25/8, switch the topic much like CTHD habitually does and otherwise Jason reminds scrupulous readers that the Left terminate life more than 650,000 per year with abortions hence dont have standing when it comes to moral arguments

        1. Estovir wrote “CTHD says As it stands, it sounds like you are making the case for rigorous gun control, including background check rule-outs for the seditious and/or psychiatrically compromised.

          No, Estovir, I didn’t say that. Jonathan said that.

          Not sure if you’re just confused or if you honestly think we’re the same person. We aren’t, as should be clear to anyone who reads our comments.

        2. CTHD is a constructive debater but we are not the same person, Estovir.

          Your defense of Kincaid is provocative. It sounds like you are saying there is no moral case for abortion. While I agree with a majority of Republican men and women that there is a strong moral case to be made against abortion, I also agree with a majority of all women and men, irrespective of party, that there is a strong moral case to be made for abortion. Each side has a compelling moral case to make.

          Opposition to abortion is certainly not a moral license to threaten abortion legislators, patients and providers with violence, if that is your defense of Kincaid.

      3. backroung checks for SEDITIOUS THOUGHTS?

        You can’t be serious. Nearly every gun buyer aware of the Second Amendment contemplates armed insurrection in the back of their heads. If not the front.

        You might as well just only let Democrats buy guns. Wait, is that where you came up with this? I never even heard the trial balloon floated before. I would shoot it out of the sky!

        Saloth Sar

      4. Jon, If you wish to appear as an honest broker and a centrist you are not accomplishing your goal. As you continue to speak the center drifts further and further away from that goal.

        Are you going to arrest Maxine Waters for her statements that weren’t obviously sarcastic and were promoting violence? I haven’t heard that type of comment from you. A bit of hypocrisy? If so that ends your theoretical honest broker commitments.

        1. Where have I proposed an arrest?

          What specific public statement from Maxine Waters do you want me to consider?

          A sound sense of the center is important. I take note of the heads up.

          1. “Where have I proposed an arrest?”

            Did I mention arrest? No.

            “What specific public statement from Maxine Waters do you want me to consider?”

            She has made enough violent statements against others that if you wish to be an honest broker you wouldn’t have to ask in order to answer the question at hand.

            “A sound sense of the center is important.”

            Yes. A lot has been written about where the center is and if one were to judge based on the population at large the center would probably be slightly to the right. That, however, IMO is not a good way to judge these things. I think one should skip politics and deal with principles and objectives.

            1. “Are you going to arrest Maxine Waters for her statements that weren’t obviously sarcastic and were promoting violence?”

              You brought up arrest.

              “She has made enough violent statements against others that if you wish to be an honest broker you wouldn’t have to ask in order to answer the question at hand.”

              I found this but thought you had something a little more clear-cut in mind:

              https://www.judicialwatch.org/wp-content/uploads/2018/06/Letter-to-OCE-re-Waters.pdf

              There is a difference between diGenova’s figurative but dangerous call for an execution and Waters’ literal call for non-violent protest.

              Waters represents a distinguished history of black civil rights organizing but she went too far in the direction of harassing Cabinet members. She was reprimanded on the Senate floor by Senate Minority Leader Schumer. Minority Leader Schumer was later himself the subject of a reprimand from Chief Justice Roberts. Schumer apologized.

              Waters defended herself with help from her supporters:

              https://abcnews.go.com/Politics/black-female-leaders-blast-schumer-pelosi-failing-defend/story?id=56382314

              1. “You brought up arrest.”

                Jon, you got bent out of shape from a sarcastic remark, but apparently not from Maxine Water’s remarks some of which appeared to be carried through. I don’t want to put you in the hot seat as long as you are honest no matter what politics you hold.

                However, if you get hot under the collar from a sarcastic statement that no one would take seriously since that statement is used all the time one would think that you would be critical of Maxine waters.

                Your JW link didn’t come through. diGenova used figurative language commonly used in a non serious manner. Maxine Watters was serious when her rhetoric advocated violence. I don’t care what her history is in civil rights. I care about her actions. I am not taking about what she said when protected by immunity.

                Now you are aware of the violence Maxine Waters promotes. Perhaps in the future you will listen to her in an impartial way. I can produce worse examples than Maxine but she has been doing this for a long time so I expected everyone to know some of the things she has said.

                I don’t like violence. diGenova didn’t sound violent but my personal preference would be that those words not be used or they be explained as sarcastic words for those that do not understand the rhetoric. If you were one of those, then I understand your point.

                1. You’re not getting me bent out of shape, Anonymous.

                  What do you think of Kincaid, at the top of the thread? Emphases added:

                  “There is literally nothing wrong with diGenova’s comments. Makes perfect sense and frankly….Maxine Waters, Nancy Pelosi, Frederica Wilson, Charles Schumer, and the hundreds of others in the US Congress inciting violence against Americans for 4 long years….they have it coming.”

                  That’s a step too far, don’t you think?

                  1. “That’s a step too far, don’t you think?”

                    What specifically is the step you are talking about? From where to where?

                    We all have opinions and others can interpret the opinions in different ways. We have to recognize that, live with it and not be too touchy.

                    What is the principle you are talking about in this particular case? That is what should be under discussion and then for desert the hypocrisy we are seeing.

                    You have one view of the world. I have another, so each of us will see things differently.

                    In my eyes you seem to have a top down view where government gives you rights and I have the opposite, as a human being I give the government rights.

  5. When they said “By Any Means Necessary” we should have believed them.

    Of course they will tamper with the Court.

    Of course they will steal an election.

  6. Actually Turley, the court doesn’t seen to agree with the majority of the public (as well as law professors) on a number of key issues. Abortion and campaign finance come to mind in that regard.

    “That “breath” however only became a perceived need for many academics when the conservative conservative on the Court grew to 6-3.”

    Polite way to say a couple seats were stolen by Mitch McConnell, isn’t it? My guess is you’ll have to step off of your ‘nothing to see here’ position in relation to political manipulation of the court at some point, I’m hoping it’s sooner rather than later.

    “Many Americans (roughly half) and judges support the conservative approach of the Court’s majority. ”

    Always impressed with, shall we say, your philosophically optimistic read on statistical reality, Jon. The above sentence citing “roughly half” of Americans is just another way of saying >> less than 50%.

    I think Greenfield has some really good ideas and it’s obvious there needs to be some sort of a timeout for the court to readjust to the political pandering it’s been subjected to in recent years.

    -Elvis Bug

      1. Likewise my friend, that capacity for delusional hallucination will shield you well from reality going forward.

        – Elvis Bug

    1. You have just demonstrated the core fault of the left. They maintain a willful ignorance to anything that runs counter to their agenda and disabusing them of this fault is a grand waste of time as will this post be to you. Those who entertain all the data know full well how the left mind works…it is as sieve through which counter information is blocked. This academic is too well an example of how thinking has become constipated within our education industry. This entire thesis of his was created for the sole purpose of convincing weak minds that the SCOTUS doesn’t know what it is doing yet this untested legal prof has a lock on what is what. Great laughter is ensuing.

  7. Was operation Timber Sycamore a war crime under international law?

    https://en.wikipedia.org/wiki/Timber_Sycamore

    Reform and improved alignment between the International Court of Justice, the International Criminal Court, the Supreme Court of the United States, the UN Charter and the US Constitution warrants serious bipartisan consideration. Will another US court help, or hinder, that improvement in alignment? Then there is the Organization of American States and the Inter-American Court of Human Rights. Partisanship aside, Greenfield’s emphasis on the domestic appears misplaced. What happens when the Constitutionality of a Legislative or Executive Action is not the same as its international legality?

  8. For 4 years Democrats in the US Congress and millions of Left wing extremists spewed incendiary remarks about beheading President Trump, hanging President Trump, shooting Trump supporters and more.

  9. Another Democrat/Liberal NUT CASE PROFESSOR when they don’t get their way want to change the entire system in order to get their way. He sites Europe, well move to Europe Professor if you like their ways and courts.

    The DEM’s hate the Constitution

    Wait until the Supreme Court hears and rules on the election watch nuts like this guy go insane

    1. 234 misunderstands. These are all just mercenaries

      Billionaires are the enemies who fund and direct them

      234 also misunderstands the Constitution. It was intended to protect the richest American moneyed interests from the Crown, and now it protects them from everyone else, by this rotten system, grown too long in the tooth

      Saloth Sar

  10. The SC is broken, and Turley has watched that process in silence or approval. 5 of the 9 justices were appointed by President’s not chosen by voters, 4 by the random dysfunction of the electoral college – aided and abetted by the SC Bush v Gore ruling – and one by an outright theft by the GOP Senate Majority of 2016. Of course, as the 5th – Barrett – was rushed through by an unseemly, unprecedented, and hypocritical act which Turley cheered on.

    Now Turley pretends that he is shocked! Shocked! he tells us, that politics is at work in the structuring of the court. What did he expect? There is a reason why the Constitution is written so that justices are chosen by the elected – not selected – President as the choices should roughly reflect the will of voters. The Senate has a duty to advise and consent – not ignore – these choices – so that the court will not be totally out of step with American voters. It is now, as majority opinion on everything from gun control to immigration shows, out of step with voters and is the planned for expression of the minority viewpoint of the party which has won only one presidential vote since 1988 – that is 1 out of 8 elections.

    You broke it Turley, you bought it.

    1. “The SC is broken,”

      Why? Joe Friday didn’t get his way.

      The 2016 election wasn’t fair. Why? Joe Friday didn’t get his way.

      Something is always broken when Joe Friday doesn’t get his way. Maybe it’s Joe Friday that is broken because he is not the center of the universe.

      1. What gets you is that he’s 75 years old thinking this way. Arrested development isn’t usually that durable.

    2. The Senate has a duty to advise and consent – not ignore – these choices – so that the court will not be totally out of step with American voters.

      It was the American voters that maintained a Republican majority in the Senate in the 2014, 2016 and 2018 elections. So based on your statement, you’d agree the court is in step with the American voters.

    3. Joe – Don’t know if I recall HS Civics that well, but No Where did we learn the Supreme Courts is an elected position. Perhaps you are thinking of the constitution of some other country?

  11. I’d really like to stop saying the Court is now 6-3 conservatives. The court ought to be 9 justices period. Neither Conservative or liberal. And more to the point at best it’s 5-4 as Chief justice Roberts is in no way, shape or form a conservative.

    1. We’ve had two problems with that.

      1. In 1937 or thereabouts, the Court stopped enforcing the jurisdictional norms encoded in the constitution, with the excuse that the distinction between inter-state and intra-state commerce was factitious and that between productive activity and trade was likewise.

      2. During the period running from about 1954 to the present, the court has contended that the phrase ‘equal protection of the laws’ gave it a roving mandate to do whatever it damn pleased.

      3. They have had the full support of the law professoriate in this abuse. A few dissidents like Lino Graglia demurred.

      1. Graglia dared to criticize desegregation via bussing! Shockingly brave

        say, that reminds me. When will we stop wasting CO2 emissions on needless bussing and let the pudgy little kids get some exercise walking to school like we did?

        we can see that global warming is only a concern where things besides leftwing social engineering is concerned.
        for their schemes, no problem!

        billionaires wanted all these things. they are the enemy

        Saloth Sar

  12. “ 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.” Liberals held the majority in prior years? A 5-4 majority up until 1991 when Thurgood Marshall stepped down to be replaced by Clarence Thomas perhaps, or if you want to take it back to the deal in time that saved nine a solid majority following the FDR administration, but for the past 30 years it’s been a conservative majority, however moderate some may have been. I’m not saying the extreme suggestion is warranted, rather your response to it skews the truth. We’re O’Conner and Souter far right extremists a la Barrett and Thomas. Perhaps not but that does not make them liberal by any stretch of the imagination. His rationale would be that the views of the majority differ greatly from the majority of lifetime appointees on the Supreme Court now. It has become extremely partisan. I do not know of an era in the past where the converse was true. The majority of Americans were in favor of the new deal and understood the need for civil rights so the liberal slant of the court that happened in the FDR years through the Carter years wasn’t unrepresentative

          1. Nice to meet you “ Art Deco x 4” I don’t believe we’ve been introduced. As Anonymous stated, my reply was a response to the other anonymous’ “what, wtf” post which showed he was in a state of confusion and not anyone else. I tried to be respectful regardless of whatever the respondent’s intent and even highlighted it was my own misstatement that may have caused his confusion, but I’m not going to call a spade a club. If he is confused, he is confused. Be well

    1. Really? And you think what you just wrote is really the way it was? For the past 30 years it’s been a conservatives majority? Gay marriage?. Partial birth abortion, Obama care? Just to name a few FAR left wins due to a leftist majority on the courts in the last 30 years. Going back further You want to tell us the Warren court of the 60s-70s was conservative? I understand you actually believe this. I’m pointing out the main issue is just how differently “We” see things. Your side think the court has basically been right leaning for the last few decades and my side thinks it’s been left leaning. for a good long time.

      1. I said explicitly the opposite of what you claim regarding the 60’s and 70’s. Please point out where I claimed it was a conservative majority in those decades. I noted from the “Deal in time to save nine” until the 70’s we had a solid liberal majority and a slight liberal majority from then until 91. It has been a slight conservative majority since 91.

        The Affordable Care Act surviving 2012 Sebelius was not a result of the court being extremely liberal, but rather Robert’s interpretation of the individual mandate being part of congress’ power of the purse (siding with the liberals) but not within the commerce clause (siding with the conservatives). In short he didn’t want his legacy to be marred by siding with the far right extremists. The majority of Citizens were in favor of the ACA and all polling that showed otherwise failed to take into account the number who were opposed as a result of the lack of a public option.

        DOMA justice Kennedy swung on noting arguments including the fact that same sex spouses could not be buried together in veteran cemeteries, joint tax filings were more complicated, healthcare benefits were complicated and mind you two women will have significantly lower income on average than a man and a woman so these financial hardships would be particularly unjust in some cases. The majority of citizens are in favor of same sex marriage being legal so again a ruling against same sex marriage would have been more partisan than not.

        The Partial birth abortion ban was upheld in 2007’s Carhart ruling along party nominated lines so I’m not really sure what you’re getting at here.

        Let’s see some actual partisan rulings the majority of Americans have been opposed to. Citizens United (undisclosed superpac funding of candidates) District of Columbia vs Heller (ensuring the government cannot effectively restrict “assault weapons”), and let’s not even get started on Bush v Gore. That in itself nullifies any counterargument you could make

    1. Everyone’s a bada$$ until bullets start flying.

      In real life the Left are cowards …They know Americans are armed and would happily take care of them if they dared to show up on our front porches.

      no truer words spoken by General Patton

      “You may get shot, or you may get killed, but you’re going up to the fighting or I’m going to stand you up in front of a firing squad”

    1. dont be sad be angry.

      and don’t worry about the crusty old forms of “The republic”

      it was meant to protect moneyed interests from the Crown in the first place and now it protects the billionaires better than ever!

      Instead worry about how WE save our skins from THEM

      billionaires are the enemy

      Saloth Sar

  13. Greenfield’s comments are so ridiculous that they wont be entertained seriously. But the option for court packing remains possible if the senate is controlled by democrats. At least it seems much more likely than Greenfield’s advice. If the court does become packed there is a very good chance that it will, in terms of judicial review, not strike down unconstitutional laws and actions unless the left approves. That means whatever is voted in or done by executive action no longer have any realistic remedies. (No vetoes, house and senate continuing to vote as virtual blocs, and no chance of the ultimate appeal going any other way than left.) That is basically a de facto democratic socialism – no actual constraints on majority rule since the constitution will be ignored. The left will say that what they are enacting is “for your own good” and may really believe that. Just as an example, they could make a rule that private conversations are not allowed to be hateful or even disrepectful to various groups since that ruleis being nicer to one and all. One can imagine first and second amendment rights being interpreted so as to render them useless.

  14. Waal, we might just construct a system where appellate judges defer to democratic choice except when there’s clear constitutional warrant to do otherwise. Which means that they quit mucking about in social policy. Which means that judges and law professors get to live in a world where public policy decisions are often inconsistent with the wishes of judges and law professors. Can’t have that.

    (It would be agreeable if our elections weren’t shot through with corruption, our elected officials composed of a crooked class of careerists, and they weren’t hamstrung like Gulliver by nonsensical judicial decrees and funding cables. Yeah, I know. Utopian).

    You listen to the judiciary and the law professoriate and what comes to mind is the Bolshie stock clerk on the British sitcom Are You Being Served?. He sidles up to the pompous sales supervisor and says to him, “You realize, when we take over, you’ll be the first one shot.”

  15. The Supreme Court judges lesser judges and determines if the law was followed by the judge, including the constitution of that state or the federal constitution. Because the rights mentioned in the bill of rights are not the only rights SCOTUS recognizes novel rights from time to time. Isn’t SCOTUS almost exactly a specialized constitutionality court? It decides no cases based on the merits, right? It seems to this non-lawyer all about procedure.

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