“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. In 1789, the law determined that two Supreme Court Justices constituted a sufficient number for adjudication.

    That number was applied across three regions for a total of six.

    Sans politics, intrigue and prevarication, one justice and the reinforcement of Article 2, Section 4, are sufficient.

    “Six Justices”

    “To limit the geographical area traveled by the justices, the Judiciary Act of 1789 divided the circuit courts into three regions: Eastern, Middle and Southern. The reason that the first Supreme Court had six justices was simple—so that two of them could preside in each of the three regions.”

    – National Geographic

      1. Is that an unassailable, arbitrary, dictatorial decree from on high or might you fashion a refutation, which, of course, is impossible.

  2. From the great Arlo Guthrie:

    “Man came in said, “All rise.” We all stood up, and Obie stood up with the twenty seven eight-by-ten colour glossy pictures, and the judge walked in sat down with a seeing eye dog, and he sat down, we sat down. Obie looked at the seeing eye dog, and then at the twenty seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one, and looked at the seeing eye dog.

    And then at twenty seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one and began to cry, ‘Cause Obie came to the realization that it was a typical case of American Blind justice, and there wasn’t nothing he could do about it, and the Judge wasn’t going to look at the twenty seven eight-by-ten colour glossy pictures with the circles and arrows and a paragraph on the back of each one explaining what each one was to be used as evidence against us. And we was fined $50 and had to pick up the garbage in the snow”

  3. Sorry Professor Turley, Chief Justice Roberts has never been conservative, moderate at best. And he has been leaning liberal for quite awhile, at least ever since his insane ACA opinion which even moderate Justice Kennedy escortiated. Chief Justice Roberts is arguably the worst Chief Justice we have ever had, as evidenced by the number of 5-4 decisions. And why don’t you call out the three “liberal” justices (formerly four), who seem to always vote as a block, unlike the other justices?

    1. “conservatives” and “liberals” are funny creatures. To wit “conservative” Hungarian Jozsef Szajer Member of the European Parliament, was busted at a gay party in Brussels using drugs during COVID-19 lockdown. This from a “conservative” who helped define marriage in Hungary’s new Constitution under the rubric of “traditional family values”. His wife? a Constitutional Judge…but of course

      Americans and their fetishes (pun intended) with labels ala “conservative” and “liberal”. More like goals and goats.

      Jozsef Szajer: Hungary MEP quits after allegedly fleeing gay orgy


      “Jozsef Szajer, 59, a founding member of Mr Orban’s Fidesz party, was injured jumping from a first-floor window on Friday night as he tried to flee before he was arrested with 24 other people”

      1. Populist is Allan.
        I don’t think Estovir and Allan are the same person.

        I’m not sure about Roy and Alan Karnovitz.

      2. Sorry Anonymous, I speak for myself and only use my given name. I do not use any other name. Why do you hide behind “Anonymous”? In what country do you live?

    2. Fully agree. I worked with him when he was in private practice and can say he is a creature of The Swamp. A politician stem to stern.

  4. This just another example how far the academic left have moved toward totalitarian views and the extent to which our legacy media have mainstreamed and accepted these repulsive views. It is quite frightening really.

  5. Sidney Powell: Backdoor Access From Foreign Countries Into 2020 Election Machines
    December 2, 2020 2:48 PM
    One of Our Great American Heroes… @SidneyPowell1 Let’s get this Justice and Equity back where it belongs…. #StopTheSteal We can’t allow other countries to steal Our Republic! https://t.co/xnlGt30IfT

    — Pete Bragg (@PeteBragg) December 2, 2020

  6. I opine that the supremes have more to do that just 9 can handle. Having a constitutional court is a way to lessen the workload.

    1. They control the dimensions of their caseload and have an antheap of clerks. Think of another excuse.

      1. x 4 — many more request a hearing than receive anything. This is justice?

    1. More BS arguments with no proof whatsoever. How is it possible to vote twice when your registration is checked when you appear to vote in person, and when you are given an absentee or mail in ballot? Also, how is it possible that a voter could get registered without proof of age? Even if these things were true, is this intentional fraud? Who is to say that double or underage voting (if it happened, which it didn’t, but for the sake of argument), went for Biden and not Trump? Republicans also dropped their bogus lawsuit about out of state voters illegally casting ballots, because, as it turns out, these were students attending college out of state or members of the military, both of which are allowed to vote in their home state. More BS. No lie too big to help out Trump.

      1. ” How is it possible to vote twice when your registration is checked when you appear to vote in person, and when you are given an absentee or mail in ballot?”

        Did you just wake up. Were you asleep for the past 6 months. That is precisely the argument that has been flying all over the airways. Democrats prevented adequate checks on illegal votes or voting twice.

  7. Of course pulling some cases from the SCOTUS has always been an issue. Ruling on constitutional issues came to the forefront after the disgusting display of the repubs and Trump, oh, and Jonny’s sycophantic support of same..

  8. The 2020 Presidential Election was a Crime which must be Adjudicated in Courts of Law.

    The Evidence and “Probable Cause” are Compelling and Overwhelming.

    The Attorney General and Governors must act in Support of Law.

  9. The “real problem” is that the central government is doing far more than the Constitution authorizes it to do. As a result, Presidential elections and Supreme Court appointments are 100 times more important than they should be.

    1. Congratulations, Patriot!

      You know well whereof you speak.

      The American thesis is Freedom and Self-Reliance.

      The entire American welfare state is unconstitutional.

      Article 1, Section 8, severely limits and restricts Congress and government, while the Constitution and Bill of Rights provide maximal freedom to individuals.

      Congress has the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, charity or redistribution of wealth.

      Congress has the power to regulate ONLY the value of money, the “flow” of “…Commerce with foreign Nations, and among the several States, and with the Indian Tribes;…” [to preclude favor and bias by one over another], and land and naval Forces.

  10. Politics shall be entirely wrung out of the judicial branch.

    A Justice is not an occult oracle or, otherwise, inscrutable deity.

    The Supreme Court shall consist of one, and not more than three, Justices constrained by the liberal employment of constitutional impeachment and conviction.

    The “manifest tenor” of the Constitution is clear and inarguable.

    The Justice, or Justices, of the Supreme Court shall be unassailably accurate or prosecuted under Article 2, Section 4.

  11. Brad Heath (Reuters): “The president’s (recently pardoned) former national security adviser, Mike Flynn, shared a message encouraging President Trump to ‘temporarily suspend the Constitution,’ impose martial law and ‘silence the destructive media.'”
    https://twitter.com/bradheath/status/1334130843137269761 (includes a copy of Flynn’s statement)

    All patriotic Americans should be disgusted with Flynn’s statement.
    But I bet that a bunch of the commenters won’t be.

    Meanwhile, more legal mistakes from Flynn’s lawyer Sidney Powell …

    Brad Heath:
    “Rocky start continues for Sidney Powell’s election-fraud lawsuit in Wisconsin. The judge assigned to the case says her team filed a draft motion by accident and still hasn’t complied with the basic rules for seeking a temporary restraining order. This particular civil procedure screw-up in Powell’s lawsuit means the defendants don’t even have to respond to her request for a temporary restraining order until a week after the Electoral College meets. Just an amazing pattern of lawyers showing up with what they say are the most important cases ever filed and botching the basics. Even the President’s lawyers screwed up the everyday rules for suing people. These are the mistakes you see when prisoners represent themselves.”
    https://twitter.com/bradheath/status/1334168556389478400 (includes copy of judge’s ruling)

    1. ““The president’s (recently pardoned) former national security adviser, Mike Flynn, shared a message encouraging President Trump to ‘temporarily suspend the Constitution,’ “

      Again we are dealing with a person whose credibility is zero. Where did Mike Flynn say those words. I share crazy things you say with others but that doesn’t mean I agree with what you said. Instead of providing the truth you use innuendo saying Flynn “shared”. You didn’t provide what Flynn said. Instead you lied and now are trying to resurrect your lie.

      You lied when you said “Michael Flynn is the one calling for Trump to suspend the Constitution:” and you lie again when you say “All patriotic Americans should be disgusted with Flynn’s statement.
      But I bet that a bunch of the commenters won’t be.”

      Instead All patriotic Americans should be disgusted with your type of lies and character assassination. You should be kept separate from honest and decent people.

      1. It doesn’t.

        I posted it because I think it’s of interest.

        Lots of people post comments that aren’t about the column. If you dislike that, then encourage Darren to delete all off-topic comments (including mine, but not limited to mine).

      2. It pads CTHD’s discussion so one forgets the lies contained elsewhere.

        CTHD even posted as a new comment thinking that would be confusing. He is trying to resurrect himself from an earlier discussion.

    2. I believe the anonymous commenter who responded to me at 12:59 to be Allan. I’ve refused to respond to Allan for months because I consider him a troll (he has lied about me for months and regularly insults me, and he has made it clear that he is never going to have a sincere and honest exchange with me). I’m not going to start responding to him simply because he’s now posting anonymously. I made that mistake a couple of times since the election, before I realized that he’s now posting under multiple names and anonymously, but I’ve learned from that and will try to avoid doing it again.

      To be clear, Flynn posted this to his Twitter account: https://twitter.com/GenFlynn/status/1333916403389370369
      In that tweet, Flynn embedded an ad / press release from We the People Convention and linked to their site, which has their petition. He has posted the hashtag #WeThePeople in more than one of his tweets.

      That We the People Convention ad says “you must be ready Mr. President to immediately declare a limited form of Martial Law, and temporarily suspend the Constitution and civilian control of these federal elections, for the sole purpose of having the military oversee a national re-vote.” The press release is attached to Brad Heath’s tweet to illustrate the claim that he made about Flynn.

      1. CTHD, You can believe what you wish but the comments I made are backed up with your own words so it doesn’t matter who is posting. Anyone can go back and read all the postings. You say you don’t reply to one person, but you reply to a lot of people because they have demonstrated your reliance on innuendo and mistruths. You can’t hold up your side of any argument.

        Be more accurate in your attributions and statements of fact and you won’t run into so many problems.

        By the way your initial statement didn’t include ” if Legislators, Courts and Congress Do Not Follow the Constitution”

        That too changes the picture. What is being asked for is a revote since Democrats have cheated. This would not have ever been considered if Democrats respected the idea of one citizen one vote.

        If Biden beat Trump fairly he would be my President without question just like Obama was. But this was not a fair election. The law was not followed. You don’t care about the law and that has been shown over and over again when you used lies and character assassination.

        Read the complete statement. It points out how the left has acted illegally and with violence, Antifa and BLM in specific along with many other things. When you lie and act illegally eventually it bites you in your butt and you have a very large butt.

            1. Whose IQ is that? Yours or his? Or is it both of yours combined?

              You can compliment each other from now through eternity but that doesn’t erase you innuendo, misstatement of facts and your overall behavior.

  12. Whenever I see “a professor says” I immediately know I am about to witness another con job from a leftie. They never tire of trying to outwit lower mortals with their dazzling, superior intellects.

  13. Whistleblowers: Postal Service labeled Trump mail ‘Undeliverable,’ 388,000 ballots backdated, ‘disappear’

    • Postal subcontractor Jesse Morgan on Oct. 21 moved 144,000-288,000 completed mail-in ballots from Bethpage, New York, to Lancaster, Pennsylvania, where his trailer holding the ballots disappears.

    • Postal workers in Traverse City, Michigan; Coraopolis, Pennsylvania; Erie, Pennsylvania; and Elkins Park, Pennsylvania, indicate widespread malfeasance in the Postal Service including backdating ballots, ordering that Trump mail be interdicted to be placed in the ‘Undeliverable Bulk Business Mail’ bin, and emphasizing that Biden mail be delivered on time.


    1. Trump “campaign mail” is not ballots. All of this is hearsay, and proof of nothing.

      1. It demonstrates a bias of the post office and gives credence to other claims.

        Where did anyone get any idea that you had any legal training what so ever.

    1. Classic hearsay–he “says he was told”. It’s really not possible for postal employees to change the postmark on mail because machines do the postmarking. Proof of literally nothing other than the desperation of those who support a wanna-be dictator.

      1. Nat. It only takes a simple change – either mechanical or a computer setting. You would benefit from learning how things work!

      2. wrong Natch they can also be “hand cancelled”

        if you were actually a working lawyer who mailed a lot you would know that, but we know you’re one of those “JDs” who lacks paying clients just puts in some “pro bono” for clinics here or there

      3. You don’t know much about the post office do you? Not based on this faulty answer.

        Hearsay? Are you an attorney or did you watch an episode of Perry Mason. That statement is part of the investigative process.

  14. The idea is that the Supreme Court of the U.S. is overworked.
    How about this novel approach: have the House and Senate make the language of proposed laws much more clear than they do. The fact that they don’t reflects on the workload of the SCOTUS.

    Do you remember that famous phrase of “we have to pass the bill so we know what’s in it”? (Another famous line from that brazen hussy NP.)


    It is a bad idea to have the SCOTUS rule on matters and questions of law that should have been made clear in the Legislation! DO YOUR DAMN JOB, Legislators !!

  15. More evidence — if we needed it — that the Left is inherently hostile to the very principles upon which the U.S. is grounded. Their goal is ultimately, as their Saint Obama put it, to “transform” this country into a socialist paradise. The Left’s efforts to get their agenda through the normal channels of representative government have thus far failed to a large extent. Thus, the appointment of Justices who view their mission as scrupulously adhering to the text of the Constitution is a tremendous blow; the Left knows that it is only through a nine justice counsel of philosopher-kings to rule over the vast unwashed that they can hope to get their agenda expeditiously imposed.

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