Can Congress Neutralize A Trump Court? Yes (To Some Degree)

Today, the Supreme Court granted expedited review of a major case involving President Trump’s ploy to rig the census by asking a question about citizenship (to undercount the unlawful immigrant population and create more House seats for Republicans).

The path of this case is highly unusual: It’s a fast track from a trial court straight to the top.

And here’s the point: Congress, in enacting the Judiciary Act, has sole constitutional power to set the “lanes” that lead to the Supreme Court.

In other words, Congress can cut-off jurisdiction to deprive the Supreme Court of any say on a case, or issue, or statute.

Sen. Jesse Helms— a Senate version of Rep. Steve King in the 1980s and 1990s— fiercely opposed school integration—the result of Brown v. Board of Education.

He would attach riders to major spending bills, for example, where he would propose to amend the Judiciary Act by denying the Supreme Court jurisdiction to hear any busing case (busing was used to integrate segregated schools). He wanted to prevent a liberal Court from using new cases and controversies to expand Brown.

He failed— but his passion for this strategy offers a useful lesson for liberals today.

Suppose that in 2021 Democrats control all branches but not the Court.

Congress could pass law curtailing jurisdiction to hear Roe v. Wade challenges. Or pass a jurisdiction law to prevent the Court from deciding cases such as the census, or key immigration cases.

What’s needed? 218 House votes. 60 Senate votes (to invoke cloture). A president’s signature.

It’s not easy—but it’s much more achievable than packing the Court or waiting for Brett Kavanaugh to retire.

ADDENDUM: History suggests that when some justices fear a congressional curtailment of their jurisdiction, they “self-correct” the Court to avoid making big constitutional waves.