Those of you who read this blog know that I have made several proposals that I believe would provide for a better Supreme Court structure. 1 President has proposed a number recently. 2 All of those suggestions would appear to be doomed to failure given the current political Congress. Dean Chemerinsky, in a letter to me, suggested my idea for a rotating panel of appellate justices to decide cert would simply be adding another layer of courts that we don't need. 3
I have a new proposal that I believe would address some of those issues.
Article III Section 2 of the Constitution reads as follows: 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. [my emphasis]
This section has to do with Court jurisdiction and implies that Congress can make adjustments to that jurisdictional oversight. So why not act a section that Congress could assign itself the role of appellate for those cases where the Supreme Court has overruled standing precedent, e.g. In Dobbs v. Jackson Women’s Health Organization (2022) (overturned Roe v Wade) and Loper Bright Enterprises v. Raimondo (2024) (overturned Chevron); or, in cases where evidence exists showing a justice should have recused him/herself because of a conflict of interest.
I don't believe a constitutional amendment would be required under Article III as it seems Congress already has that power. I have deliberately limited the Congressional appeal possibility to those two types of cases to avoid massive impact on Court decisions. In order to review a case (and possibly overturn the decision that would simply eliminate the decision reverting to preexisting law) Congress would need only a simple majority. To overturn a decision would also need but a simple majority of the House and Senate. Nothing would preclude a new appeal to the Court, perhaps even on similar grounds, and if warranted a new Congress could validate a new decision. Such a reversal by Congress might make the Supreme Court revisit its thinking. This process also addresses the current failure of Court members to recuse themselves when there exists clear reasons why they should
Of course one might argue that Congress need only pass ethics rules covering such situations or new legislation to validate something like Chevron deference, for example. This process is much more complicated as it leads to irrelevant amendment additions and slow downs whereas a quicker decision of up or down on a precedent overturning decision would be far cleaner and quicker.
2. https://www.whitehouse.gov/briefing-room/statements-releases/2024/07/29/fact-sheet-president-biden-announces-bold-plan-to-reform-the-supreme-court-and-ensure-no-president-is-above-the-law/ While interesting, some of the proposals would require a Constitutional Amendment, currently an impossibility.
3. Personal email to the author.
