Supreme Court Review Act would prompt Congress to respond quickly to Court decisions and restore policymaking power of the legislative branch
Washington, DC – U.S. Senators Sheldon Whitehouse (D-RI) and Catherine Cortez Masto (D-NV) today reintroduced the Supreme Court Review Act, legislation that would revitalize Congress’s ability to check the Supreme Court’s erroneous interpretation of federal law and restore rights by statute that the Court has taken away.
“The increasingly unmoored right-wing majority on the Supreme Court has conveniently discarded textualism and originalism and trampled precedent to deliver political victories for Republican donor interests. Congress shouldn’t sit idly by, hampered by special-interest-fueled gridlock and outdated Senate procedures, as the Court eliminates constitutional protections for Americans,” said Senator Whitehouse, Chairman of the Senate Judiciary Courts Subcommittee. “The Supreme Court Review Act is a key good-government measure that would check activist decisions by the Court and make sure policymaking power remains where the Constitution delegated it: in the hands of the American people and their elected representatives.”
“Supreme Court decisions have real impacts on Nevadans’ everyday lives, and our legislation ensures we have accountability across all branches of government, especially as the Court becomes more extreme,” said Senator Cortez Masto. “This legislation makes it crystal clear that Congress can legislate and take action when the Court takes away fundamental rights.”
The legislation is cosponsored by Senators Richard Blumenthal (D-CT), Alex Padilla (D-CA), Elizabeth Warren (D-MA), Mazie Hirono (D-HI), Ron Wyden (D-OR), Peter Welch (D-VT), Jeff Merkley (D-OR), and Cory Booker (D-NJ). The bill is endorsed by People for the American Way, Fix the Court, Public Citizen, Citizens for Responsibility and Ethics in Washington (CREW), Common Cause, Project on Government Oversight, People’s Parity Project, Accountable.us, Center for Biological Diversity, and Evergreen Action.
The Supreme Court continues to eviscerate longstanding precedents and constitutional protections in multiple areas of the law, including voting rights, environmental protections, and commonsense gun safety regulations. Congress can respond to these cases by clarifying federal law or creating new statutory protections, but plodding and cumbersome Senate procedures as well as the politicization of the judiciary have undermined Congress’s ability to react quickly. Without congressional action, Court opinions eliminating constitutional protections and misreading federal statutes will continue to usurp policymaking by elected officials.
Whitehouse and Cortez Masto’s Supreme Court Review Act would help ensure that the constitutionally delegated power to make policy remains with Congress, not the Court, by creating streamlined procedures through which Congress can exercise its existing power to amend statutes or create federal statutory rights. Congress has already created a process for expeditiously responding to agency rules under the Congressional Review Act, and the Supreme Court Review Act would do the same for Supreme Court decisions. The senators’ legislation would:
- Codify a process for passing new laws in response to Supreme Court decisions that interpret federal statutes or roll back constitutional rights;
- Expedite procedures for the Senate to pass these laws by a simple majority;
- Limit the process to recent Court rulings and exclude non-germane changes to federal law to prevent abuse; and
- Ensure that members of the minority party in the Senate have an opportunity to propose alternative updates to the law.
Congress can always amend the law in response to the Court’s interpretation of a statute or provide greater federal statutory protections than the Supreme Court says are required under the Constitution. In the past, Congress frequently exercised this power under the control of both political parties. According to a 2014 study, Congress responded legislatively to 275 Supreme Court cases—sometimes more than once—from 1967-2011.
“We applaud Sen. Whitehouse for reintroducing the Supreme Court Review Act at a time when the MAGA justices’ attacks on our freedoms are getting further and further out of control,” said Svante Myrick, President of People For the American Way. “The Dobbs ruling that gutted reproductive rights was just the beginning. This radical far-right Court continues to hand down decisions that reverse or undermine laws and Constitutional rights, on issues ranging from environmental protection, to student loan debt, to unregistered firearms and more. This bill affirms Congress’s authority to restore our rights when the far-right Court takes them away, and we fully support it.”
“The Supreme Court’s unofficial mascot might be the tortoise, but things are moving pretty fast on First Street of late, so it’s critical that lawmakers have the tools they need to respond when the Court plays superlegislature. Sens. Whitehouse and Cortez Masto have designed a sensible proposal that would help Congress assert its Article I powers over the Court at pivotal moments (while limiting Article I shenanigans during the process), and I applaud their work,” said Gabe Roth, Executive Director of Fix the Court.
“In recent years, the Supreme Court has shown itself to be one of the most consequential but least accountable institutions in government. The Supreme Court Review Act would provide an important path for Congress to fulfill its responsibilities as a co-equal branch of government by allowing it to respond in a timely way to Supreme Court decisions that affect our constitutional rights and freedoms,” said Virginia Kase Solomón, President and CEO of Common Cause. “This most recent Supreme Court term demonstrated just how much is at stake, and we commend Senators Whitehouse and Cortez Masto for introducing this legislation, which we encourage Congress to quickly consider to help make government more responsive.”
“In a democracy, the people and their elected representatives are supposed to set the direction for the country. But as the last several years have made undeniable, the Supreme Court is trying to transform itself into the nation’s ultimate policy-making body. The Supreme Court Review Act is a critical means of reasserting the power of the people and the policy-making authority of our democratically elected and accountable branches of government,” said Molly Coleman, Executive Director of People’s Parity Project.
“The Supreme Court Review Act is a vital step in safeguarding our democracy and ensuring that corporate interests don’t wield undue power over our judiciary. With the Court increasingly undermining critical federal statutes and constitutional protections, Congress must have the tools to respond swiftly. This bill ensures that egregious rulings influenced by powerful corporate interests and right-wing extremists do not go unchecked and that Congress can restore many of the protections rolled back by the courts. It’s about time that we restore the balance of power and protect the rights of everyday Americans from corporate manipulation of the judiciary,” said Caroline Ciccone, President of Accountable.US.
The Supreme Court Review Act would add to a growing number of good-government reform bills introduced by Whitehouse to restore Americans’ trust in government, particularly the Supreme Court. The Senator’s DISCLOSE Act would require organizations spending money in federal elections to disclose their donors, allowing the American people to see who is attempting to sway their elections and gain control over their government.
Whitehouse’s Supreme Court Ethics, Recusal, and Transparency Act would require Supreme Court justices to adopt a binding and enforceable code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, end the practice of justices ruling on their own conflicts of interests, and require justices to explain their recusal decisions to the public.
The Senator’s Supreme Court Biennial Appointments and Term Limits Act would establish effective 18-year term limits and regularized appointments for Supreme Court justices. Under the legislation, a new justice would take the bench every two years and spend 18 years participating in all Supreme Court cases, after which the justice would be limited to hearing a small number of constitutionally required cases.
Full text of the bill is available here.
