With the passing of Justice Ginsburg, and with the Trump-McConnell move to make the Supreme Court the antithesis of democracy, progressives had better come up with a way to stymie the Court which is packed with Republicans.
Here’s one way which hasn’t been tried yet.
Although the Constitution says the Supreme Court is the high court, it is Congress which decides on its appellate jurisdiction. “By the constitution of the United States the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.” Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847). “[I]t is for Congress to determine how far, within the limits of the capacity of this court to take, appellate jurisdiction shall be given, and when conferred, it can be exercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation.” Daniels v. Railroad Co., 70 U.S. (3 Wall.) 250, 254 (1865).
Although the Constitution says the Supreme Court is the high court, it is Congress which decides on its appellate jurisdiction.
So, if the Democrats take over the House, Senate, and presidency, Congress should remove all appellate jurisdiction from the Court and create “the High Appellate Court,” which will take all appeals from both federal and state courts, without further appeals to the Supreme Court. They can then name all the judges to the new court. Of course, this would leave the Supreme Court with little to do other than “original jurisdiction” cases, which are few and far between.
Congress can thumb its nose at the Republicans further by naming to the “High Court” all of the liberal members of the Supreme Court, leaving aside the conservative ones, and fill the remaining chairs with guaranteed progressives.
This is another angle on FDR’s court packing plan. He was going to increase the number of Supreme Court judges and then name liberals to the new seat. What I am doing is suggesting that the appellate power of the Supreme Court be taken from and be given to a “lower court,” which would become the “High Appellate Court.” Technically, the Supreme Court would remain supreme, although in reality it would have far less to say.
Congress could stop future Republican administrations from undoing its work by providing that a change in this law is subject to a 60% vote in each house.
That should fix them.
Michael T. Hertz