Does the United States Need a Constitutional Court?

July 23, 2023. Updated July 10, 2024.

Because of long-standing concerns about adverse effects the Supreme Court has had on our democracy over the last forty years or so, I am proposing that we consider the idea of having a Constitutional Court: something that most countries in the developed world have already adopted. 

Such an idea was not considered by the Framers in the drafting of our Constitution in 1787, principally because the idea itself of a constitution was relatively new.  Moreover, as Michael Waldman has pointed out, “Even in private, though, the delegates [to the Constitutional Convention of 1787] barely discussed the courts.  Article III of the Constitution, creating the judicial branch, is 377 words long, only one tenth the amount of text devoted to the other two branches.  There was no model for what the federal courts were to become.” 

In a political environment where there have been highly organized and well-financed efforts to grease the skids for the appointment of judges with a certain point of view in anticipation that they will rule a certain way, and shady perversion or manipulation of the Advice and Consent function of the Senate, it is not unexpected that there is loss of confidence in the legitimacy of the Supreme Court.  The unique lack of any enforceable code of conduct for the Justices of the Supreme Court has only served to exacerbate that phenomenon, especially where there have been revelations of repeated misconduct by some Supreme Court Justices in violation of the most fundamental ethics of judicial conduct.  

The acceleration of this public loss of confidence in the legitimacy of the Court resulted in large part from the appointment of three justices by Donald Trump, perhaps the worst president in the history of our country, tainted by less than adequate investigation of misconduct, arbitrary actions by the senate majority leader, and access to the White House by Leonard Leo, widely known as a fund raiser and operative for the Federalist Society.  We might even consider the strategic resignation of one justice in communication with the White House and the subsequent appointment of a former clerk of that very same justice to have been improper, but at the very least, an overtly political influence on the appointment process.

Another set of facts that has contributed to questions about the Court’s legitimacy was the affirmation under oath by three or four nominees during their confirmation processes that the case of Roe v. Wade was settled law, something that their confirmations were likely contingent upon, only for those justices to vote to overturn Roe v. Wade just a few years later.

The idea of a constitutional court did not exist at the time of the drafting of the Constitution, and that instrument does not explicitly grant the Supreme Court the power to declare a legislative or executive act unconstitutional.  Nor does the Constitution deny to the Court that power.  It was created explicitly by the Supreme Court itself in the 1803 case of Marbury v. Madison.

While that power to rule on the constitutionality of legislative and executive acts has had its ups and downs over the subsequent two hundred years or more it seems to have worked reasonably well.  But a series of relatively recent cases with 5-4 decisions overruling legislation began to raise concerns about whether the Court should have as much power as it does.  The amassing of such power has only been enhanced by what has become over the past few decades almost an impossibility of amendment of the Constitution under Article V, to the point where it seems as if the Court has become a de facto substitute for the amendment process.  That would in itself not necessarily be a bad thing, but the fact that a 5-4 majority could have such power ought to be disturbing to anyone who cares about our democracy. 

Perhaps the three worst decisions, in terms of their adverse effects on our democracy, were Citizens United (2010), Shelby County v. Holder (2013), and Trump v. United States (2024).  In the first, writing for a 5-4 majority, Justice Anthony Kennedy wrote, “And the appearance of access or influence will not cause the electorate to lose faith in this democracy.”  In the second, Chief Justice John Roberts, also writing for 5-4 majority in Shelby County, said that there was no longer a need for Sections 5 and 4(b) of the Voting Rights Act of 1965, because the problems they were designed to address no longer existed.  Just how wrong the Chief Justice got that one was foreshadowed by Justice Ginsburg’s dissent, “Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Her words were later borne out by the literally hundreds of state laws enacted following that decision, restricting and disenfranchising untold numbers of voters, with real consequences in the results of elections.   It has only become worse following the specious claims of voter fraud (and associated actions that we will soon hear more about in pending trials of multiple indictments) by Donald Trump and his henchmen in the wake of the 2020 presidential election, which ultimately led to the 6-3 “decision” (perhaps more accurately a judicially-created Constitutional Amendment cloaked in the form of an interlocutory appeal) in Trump v. U.S. that has the potential to upend the rule of law and our system of checks and balances.

With the Trump appointments resulting in a 6-3 “conservative” majority, some in Congress have proposed that the number of justices ought to be expanded by 4 additional justices, something that President Biden has opposed because it does not address the basic problem of a politicized Court.  I happen to agree with him.  Expansion of the Supreme Court may actually be a good thing, but it should not be done in a way that perpetuates and/or normalizes what has become a hyper-partisan selection process.

Rather than accept what is perhaps a more easily achievable (assuming the filibuster can be done away with), but questionably effective in the long term, way to restore the legitimacy of the judiciary’s power to decide questions of constitutionality, we ought to consider a more durable (and less susceptible to corruption) way to counterbalance the out-sized influence of the Supreme Court on our democracy.  

So how do we go about restoring the legitimacy of our judicial system within the constraints of the Constitution? 

Article III, sec. 1 vests Congress with the power to establish “inferior Courts,” and that power presumably enables it to create a Constitutional Court, with original jurisdiction to rule on (at least in the form of a advisory opinion) the constitutionality of proposed or already enacted legislation, or on actions by the executive.  It can also be granted appellate jurisdiction where there are constitutional questions at issue in a case or controversy.  Does the fact that such a court would be an “inferior Court” mean that it would be subject to review by the Supreme Court, and if so what would be the requirements to overturn its rulings?

A fundamental question is how the power of judicial review of questions of constitutional law should be distributed between a Constitutional Court and the Supreme Court.  In other words, what will what Lech Garlicki has called “judicial cohabitation” look like, and will it improve or weaken the power of the judiciary to preserve our democracy.

Article III, sec. 2, cl. 2 grants to the Supreme Court “appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make [italics added].”  That must mean that Congress can deny the Supreme Court altogether the power to reverse a Constitutional Court, or perhaps to at least require a unanimous, or, say, three-fourths vote to overrule it.

Even before Citizens United, Shelby County, and Trump v. U.S. were decided, legitimate concerns had been raised about the negative effect of the Supreme Court on democracy.

Chief Justice John Roberts in parrying criticism of the Court’s power to overrule the will of the people has said, according to Colleen Slevin (Associated Press), that its role should not be called into question just because people disagree with its decisions.  She goes on to say “he was concerned that lately some critics of the court’s controversial decisions have questioned the legitimacy of the court, which he said was a mistake. He did not mention any specific cases or critics by name.

“ ‘If the court doesn’t retain its legitimate function of interpreting the constitution, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is.’ ” 

While Chief Justice John Marshall wrote in Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is,” we should also consider the words of former U.S. Court of Appeals Judge Richard Posner: “If changing judges changes the law, it is not even clear what the law is.”

So, should not more weight be given to a legislature that, at least theoretically, expresses the will of the people filtered through the lens of legislative committee testimony from stakeholders and legal experts?  Is a razor-thin majority of nine Supreme Court justices sufficient to declare such legislation unconstitutional? 

We could consider the question of whether a majority of two-thirds, or three-fourths should be required for a Constitutional Court (or the Supreme Court for that matter) to declare a law unconstitutional. 

If we can (and want to) create a Constitutional Court, either by Constitutional amendment or by legislation, how should it be structured?

I propose that such a court have eighteen members, with subsequent appointments being on a staggered basis, and additional appointments based on death or retirement of a judge qualified to vote on cases before the court.  Further, that, although the Constitution requires that they “shall hold their offices during good Behavior”, after serving for a period of years, say, eighteen, a judge automatically attains senior status that allows them to hear arguments and participate in deliberations, but not to have a vote in the decision, unless the votes of those who have most recently attained senior status are required to achieve a quorum of twelve.

Another way to structure the constitutional court would be to have one member from each Circuit, plus, say three alternate judges (perhaps more, drawn from a pool of senior judges as described above), chosen at large and randomly selected to fill a temporary vacancy in the event of recusal or illness; or upon the death or resignation of a judge, until a permanent appointment from the particular Circuit can be made.

In the event that Congress does create such a court, how would the initial judges be chosen? One way would be for each judge in each Federal Circuit, to nominate one judge and one alternate judge, with the final determination being made by lottery for a judge from each of the 13 Circuits, and for, say, three at-large alternates. Absent a Constitutional Amendment, a slate so constituted would ultimately need to be adopted by the President as nominations and approved by the Senate. Subsequent appointments could be made by the process prescribed in Art. II, Sec. 2, cl. 2, while retaining the one-judge-per Circuit requirement and three alternate at-large judges as described above. Other schemes may be proposed in the legislative process, with the ultimate goal being to avoid partisan influences as much as possible.

A Constitutional Amendment would enable term-limits, and the appointment process to be simpler and less susceptible to partisanship and/or outside influences.

I have no illusions that the Congress will in the near future create a Constitutional Court or propose a Constitutional Amendment that would achieve such a goal, but that should not deter us from considering it necessary for addressing the long term need to preserve our democratic republic and faith in its judicial system.  The alternative, I fear, is to simply ignore a significant problem until our democratic republic is irretrievably broken.  Or are there other solutions?

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Notes:

Lech Garlicki, Constitutional courts versus supreme courts, International Journal of Constitutional Law, Volume 5, Issue 1, January 2007, 44-68, available at https://academic.oup.com/icon/article/5/1/44/722508 see also https://doi.org/10.1093/icon/mol044

Michael Waldman, The Supermajority: How the Supreme Court Divided America, Simon & Schuster, 2003

Jamin Raskin, Overruling Democracy, The Supreme Court vs. The American People, Routledge, 2003

Judiciary Act of 2023, https://www.congress.gov/bill/118th-congress/senate-bill/1616, https://www.congress.gov/bill/118th-congress/house-bill/3422/text

Colleen Slevin, Chief Justice John Roberts defends the legitimacy of the Supreme Court, Pittsburgh Post-Gazette, 9/10/22, available at https://www.post-gazette.com/news/crime-courts/2022/09/10/supreme-court-justice-john-roberts-colorado-speech-public-legitimacy-roe-constitution-barricades/stories/202209100037

Trump v. U.S. (Slip Op.) https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf