A Radical Proposal for Supreme Court Reform

By Moe White –

The more the blatant corruption on the US Supreme Court is exposed, the more various pundits and analysts—including professors of Constitutional law—agonize over what to do about it.

Some suggest that Congress use the power of the purse to withhold all funding for the Court, others that budgets for justices not include any money for clerks and assistants. Still others imagine that they can write a meaningful Code of Ethics with enforcement power (and that John Roberts would be able to enforce it), and nearly all commentators insist that “there’s really nothing that can be done about a rogue Court!”

But the fact is that the clear language and original meaning—my nod to so-called “textualists”—make it very clear that the Congress has absolute authority over the Court’s jurisdiction. This despite the arrogation of Marbury v. Madison in 1803.

Article III

Article III of the US Constitution lays out very clearly “the judicial Power of the United States.” Section 1 identifies “one supreme Court” and “such inferior Courts” as Congress my ordain and establish. The first paragraph of Section 2 specifies that the court’s “Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made… ;” along with numerous other types of cases and controversies, including maritime disputes, controversies involving the United States, disputes between states, cases involving citizens of different states, and matters involving foreign governments or citizens.

Then, in paragraph 2, the Constitution specifies the following: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

There could be nothing clearer in the Constitution than that final phrase: CONGRESS, and no other body, can limit and regulate the Court’s appellate jurisdiction in all cases other than those clearly specified in paragraph 1.

How to Apply This Power

The Senate and the House can, and should, pass legislation that concludes with one simple sentence which, when signed into law by the president, can keep Alito’s, Thomas’s, and the rest of the Court’s filthy hands off the laws that are duly passed by Congress and signed by presidents. To wit:

“This legislation, and all regulations, rules, applications, and interpretations that follow from it, is hereby enacted into law with an exception to Court review, as required and permitted by Article III, Section 2, Paragraph 2 of the Constitution of the United States.”

When—one hopes in January 2029—Democrats control the executive and legislative branches, Congress can:

• pass the Voting Rights Restoration Bill.
• pass a guaranteed, nationwide right to of every person to control their own reproductive choices.
• pass legislation guaranteeing all LGBTQ+ rights including marriage and the right of every American to determine for themselves how they choose to live.
• pass a law reinforcing the First Amendment’s clear rule prohibiting the use of any religious test, or any religious-based “moral codes,” by any state on any matter.
• pass a law requiring the availability of secular, nonreligious education of all American children, and prohibiting any tax dollars (state or federal) from going to any religious institution of any sort, including houses of worship but also colleges, secondary schools, primary schools, kindergarten, and daycare programs.

I include this last suggestion so that, if a religious community or denomination wishes to support religiously based education programs through their own finances, they’re free to do so; but do not allow any government to take the people’s money, through taxes, to support an institution with beliefs they do not share. A Jew should no more be forced to give money to devoutly Christian Liberty University than the Christian parents of a Liberty student should be forced to give money to a religious middle school open only to Hindus … or Muslims, Jews, Rastafarians, or Catholics.

For those who might say, “This has never been done before!” I say “So what?”

No justice has ever flown the partisan flags of insurrection and Christian nationalism outside his two homes, or received quarter-million-dollar motor homes as bribes, or accepted “honoraria” from companies with disputes before the court—all without declaring the bribes as income.

No justice has ever entertained the idea that a president has absolute immunity for anything he does, did, might do, or will do, in office or out of it—fundamentally, that he holds the “divine right of kings”—until the end of time.

No justice in 250 years has ever been as corrupt as Clarence Thomas and Samuel Alito, or blatantly lied, while under oath during confirmation hearings, about following precedent, as Neil Gorsuch, Brett Kavanaugh, or Amy Coney Barrett did repeatedly. No justice in our history—other than Chief Justice John Roberts—has had a wife who has earned more than $10 million by helping attorneys get jobs with firms that argue cases before the court.

NOTE: The views and opinions expressed here, as well as assertions of facts, are those of the author. They do not necessarily represent the views or opinions of The Urban News.