New Bill Would Make It Easier For Congress To Fight Back Against Hard-Right Supreme Court

The Supreme Court Review Act would let a simple majority — sans filibuster — respond to decisions like the one overturning Roe v. Wade.

Democrats introduced legislation Thursday that would enable a simple majority in Congress to override Supreme Court decisions like those that overturned the right to an abortion and gutted the government’s ability to regulate carbon emissions.

The Supreme Court Review Act would give Congress the authority to quickly respond to Supreme Court rulings that overturn a previously recognized constitutional right, newly interpret or reinterpret a statute, or invalidate a proposed or enacted regulation. Supreme Court Review Act bills would be able to pass the Senate without being subject to the chamber’s 60-vote filibuster threshold.

The legislation, introduced by Sens. Sheldon Whitehouse (D-R.I.) and Catherine Cortez Masto (D-Nev.) in the Senate and Rep. Hank Johnson (D-Ga.) in the House, comes on the heels of the Supreme Court’s hard-right turn during the first full term of the six-vote conservative supermajority installed by President Donald Trump.

In this historic term, the court ended nationwide protections for abortion care by overturning Roe v. Wade, weakened the Environmental Protection Agency’s ability to respond to climate change, further gutted state gun control laws, rolled back Miranda rights for criminal defendants, and hollowed out precedents supporting the separation of church and state. Public confidence in the court has since collapsed to historic lows.

“Six radical justices enacted a bonanza of right-wing policies during the last term, reshaping American life in wildly unpopular ways over just a matter of days,” Whitehouse said in a statement introducing the legislation. “The American people are fed up with policymaking by unaccountable Supreme Court justices, and we have a solution. This important good-government reform would check the activist Court’s rogue decisions by ensuring policymaking stays where the Constitution delegated it: in the hands of the American people and their elected representatives.”

Sen. Sheldon Whitehouse (D-R.I.) introduced the Supreme Court Review Act with Sen. Catherine Cortez Masto (D-Nev.). A companion bill will be introduced in the House by Rep. Hank Johnson (D-Ga.).
Sen. Sheldon Whitehouse (D-R.I.) introduced the Supreme Court Review Act with Sen. Catherine Cortez Masto (D-Nev.). A companion bill will be introduced in the House by Rep. Hank Johnson (D-Ga.).
SUSAN WALSH via Getty Images

The bill combines elements from the Congressional Review Act, which gives Congress fast-track authority to invalidate executive branch regulations, and the budget reconciliation process. The CRA and reconciliation are two of the few legislative mechanisms that evade the Senate’s filibuster rules and allow legislation to pass by simple majority.

The Supreme Court Review Act would let Congress respond to certain Supreme Court decisions within a set time frame after the decision comes down. The process would require the comptroller general of the United States to file a notice to Congress within two days of a covered decision. In the Senate, that notice could then either be referred to a relevant committee within 10 days or to the floor with the support of 16 senators. The bill would allow the minority to respond to any legislation by putting its own legislation on the floor if it has the support of 40 senators.

The bill also copies the Byrd Rule used in the budget reconciliation process, disallowing legislation introduced under the Supreme Court Review Act from including any extraneous provisions.

“This bill would allow Congress to more efficiently exercise its existing power to respond when the Court misinterprets Congressional intent or strips Americans of fundamental rights,” Cortez Masto said in a statement.

A one-page summary of the bill includes some examples of decisions that could be overridden if it were enacted. These include the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe, the decision in West Virginia v. EPA that limited the use of the Clean Air Act to regulate power plant carbon emissions, the 2021 Brnovich v. DNC decision that reinterpreted elements of the Voting Rights Act, and the decision in Alabama Association of Realtors v. HHS that invalidated the Biden administration’s COVID-19 eviction moratorium.

The bill, co-sponsored by Democratic Sens. Elizabeth Warren (Mass.), Mazie Hirono (Hawaii), Richard Blumenthal (Conn.), Ron Wyden (Ore.), Alex Padilla (Calif.) and Kirsten Gillibrand (N.Y.), joins a growing list of measures introduced by Democrats in response to the court’s rightward swing. The composition of the court changed dramatically after Senate Republicans blockaded President Barack Obama’s nominee to fill the seat of the late Justice Antonin Scalia in 2016 and Trump subsequently appointed three justices, including one as voting in the 2020 election was underway.

Other court-curbing measures include legislation to add four seats to the court, impose term limits on justices, and require justices to abide by the same ethics and recusal laws as lower court judges. Some members, like Rep. Alexandria Ocasio-Cortez (D-N.Y.) are asking Democratic leadership to strip the court of its jurisdiction to hear cases on certain topics like abortion, same-sex marriage and legal contraception.

President Joe Biden has not yet endorsed any of the proposals to curb the court’s power or make it easier for Congress to respond to its rulings.

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