Which of the following are ways that Congress can limit the power of the Supreme Court?

Separation of Powers

The term “Separation of Powers” was coined by the 18th century philosopher Montesquieu. Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers. By having multiple branches of government, this system helps to ensure that no one branch is more powerful than another. Typically, this system divides the government into three branches: the Legislative Branch, the Executive Branch, and the Judicial Branch. The United States federal government and forty states divide their governments into these three branches.

In the federal government, Article 1 of the United States Constitution establishes the Legislative Branch, which consists of Congress. Congress, in addition to other enumerated responsibilities, is responsible for creating laws. As a general rule, the nondelegation doctrine prohibits the Legislative Branch from delegating its lawmaking responsibilities. Congress can, however, provide agencies with regulatory guidelines if it provides them with an “intelligible principle” to base their regulations on. For more information on the Legislative Branch, refer to “Congress.”

Article 2 of the United States Constitution establishes the Executive Branch, which consists of the President. The President approves and carries out the laws created by the Legislative Branch. For more information on the Executive Branch, refer to “Executive Branch.”

Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the United States Supreme Court. The Judicial Branch interprets the laws passed by the Legislative Branch. For more information on the Judicial Branch, refer to “Judiciary.”

Separation of Powers in the United States is associated with the Checks and Balances system. The Checks and Balances system provides each branch of government with individual powers to check the other branches and prevent any one branch from becoming too powerful. For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional. Congress consists of two houses: the Senate and the House of Representatives, and can override a Presidential veto with a 2/3 vote in both houses.

The Checks and Balances System also provides the branches with some power to appoint or remove members from the other branches. Congress can impeach and convict the president for high crimes, like treason or bribery. The House of Representatives has the power to bring impeachment charges against the President; the Senate has the power to convict and remove the President from office. In addition, Supreme Court candidates are appointed by the President and are confirmed by the Senate. Judges can be removed from office by impeachment in the House of Representatives and conviction in the Senate. In this way, the system provides a measure, in addition to invalidating laws, for each branch to check the others.

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Over the past month, an extreme, activist majority on the Supreme Court demonstrated flagrant judicial overreach when it undermined long-standing precedents, laws, and constitutional rights. That majority repeatedly went out of its way to impose its ideology on the nation instead of simply “calling balls and strikes.” The consequences are dire: Millions of women will lose access to abortion; states will have even fewer tools to reign in gun violence; and climate change will be allowed to run rampant. Unfortunately, the rolling back of fundamental rights is likely to continue as extremist, right-wing justices with lifetime appointments flex their newfound muscle and seek to reshape American life.

Reversing the rapid retreat from America’s “high-water mark” of rights and effective governance will require both long-term and more immediate action. First, we need to begin laying the groundwork for structural reforms to the Supreme Court and the judiciary that will deradicalize the courts and limit the influence of extreme judges. At the same time, we also need to take shorter-term actions to respond to the immediate social and policy implications of the wrongly decided Supreme Court decisions of this last term.

CAP has previously enumerated a number of important reforms for the Supreme Court and the judiciary writ large to restore them as objective and independent arbiters of the law—and to curb the influence of ideologue judges. Some of these reforms include:

• Implement term limits for Supreme Court justices. The increased tenure of justices today means that nine individuals have more power than the framers of the Constitution intended. Vacancies are now irregular and unpredictable, raising the stakes for each confirmation. Congress can fix this by creating an 18-year term limit for justices to actively participate and vote in cases heard by the court before they can continue their paid service in senior status. This would guarantee every president can nominate two justices during each four-year term. Because “legacy” justices confirmed prior to the term limits would not be subject to them, this could temporarily increase the number of active justices serving on the court.
• Expand the lower courts. There haven’t been any significant updates to the number of seats on the federal bench in over 30 years. CAP has called for these seats to be expanded by 30 percent to meet the demands that population growth has placed on the judicial system and to ensure that the judiciary is more reflective of our nation’s makeup. Having judges of diverse demographic and professional backgrounds—with a better understanding of the wide-array of experiences within the nation—will lead to more holistically informed and fair-minded decisions.
• Reform the judicial nomination and confirmation processes. Sitting presidents could utilize an independent bipartisan commission when forming lists of qualified judicial nominees to help ensure the consistent nomination of fair-minded judges to the federal bench. Additionally, Congress should consider the benefits and risks of creating new fast-track procedures to the judicial confirmation process, ensuring an up-or-down vote on nominees to the court even when the president and Senate majority are of different political parties.
• Establish enforceable ethics restrictions and improve transparency for the Supreme Court. There is no current binding code of conduct for Supreme Court justices—despite multiple allegations of conflicts of interest. The existing code of conduct for federal judges, created in 1973, should be strengthened and extended to the Supreme Court. The ethical standards can be enforced through the creation of an independent panel that investigates judicial ethics complaints and administers disciplinary actions when necessary. Additionally, the court’s expanded use of its “shadow docket” merits close scrutiny and possible reform to limit the instances in which decisions are handed down with little or no explanation and without giving the public the opportunity to fully brief the court or make oral arguments.
• Consider limiting the appellate jurisdiction of the Supreme Court. Facing the prospect of continued radical right-wing activism in future terms, Congress could assess the potential benefits and drawbacks of limiting the jurisdiction of appellate cases reviewed by the Supreme Court to guard against judicial overreach. This could be done for certain types of cases or more generally. Although the Constitution allows Congress to limit the Supreme Court’s appellate jurisdiction, it is unclear how the Supreme Court might respond, and there is ongoing debate on the likely impacts of this option.

While these reforms could improve the courts in the medium- to long-run, more immediate action is needed to mitigate the significant harms caused by the extreme right-wing majority in its recent term. In two areas in particular—the rollback of New York’s 108-year-old law governing concealed carry handguns and the overturning of Roe v. Wade and denying the constitutional protection for abortion access—CAP has put forward concrete solutions that could help, including:

Decreasing gun violence

• Leverage $750 million in new federal funding to support the creation and administration in states of Extreme Risk Protection Orders, which keep guns away from individuals determined by a court to be a danger to themselves or others.
• Build on reforms in the Bipartisan Safe Communities Act by requiring universal background checks and banning high-capacity magazines.
• Enact legislation and fully enforce new regulations cracking down on “ghost guns,” or untraceable, privately made, and often inexpensive firearms.
• Address gun trafficking through improved gun crime tracing, reporting on gun shows, and additional security measures for gun sellers.
• Promote seven community-level actions to curb gun violence, such as improved gun tracing and data collection, protecting survivors of domestic violence, and promoting safe gun storage.

Protecting reproductive rights

• Expand access to early abortion medication, which has long been approved by the Food and Drug Administration (FDA) and enjoys widespread support from Americans. In particular, the federal government must take steps to protect access to early abortion medication through the mail via telehealth prescriptions—as approved by the FDA—regardless of the state in which a patient lives.
• Narrow exceptions—most commonly for rape, incest, or to protect the life of a patient—never make an abortion ban acceptable. But guidelines and processes must be clarified for accessing care under both state bans’ exceptions (increasingly just life but also rape and incest) as well as under Medicaid’s exceptions to the Hyde Amendment (rape, incest, and life) to ensure eligible patients are able to quickly get the care they need.
• The Department of Justice (DOJ) must protect the right of individuals to travel out of state to receive an abortion (or other care including contraception and gender-affirming care). This includes protecting their safety and privacy while traveling as well as challenging any state laws that may be passed seeking to restrict their freedom of movement.
• The DOJ must also vigorously challenge in court any new state laws subjecting individuals to criminal and/or civil liability if they provide care or assistance to those over state lines. States supportive of abortion must refuse to participate in other states’ attempts to criminalize people across state lines.
• Federal and state officials must fight efforts to punish and criminalize women who seek an abortion. Although currently rare, even under Roe, more than a thousand women were prosecuted for their pregnancy outcomes. And even when not directly criminalized, states are openly discussing ways in which to track women and criminalize doctors that would necessitate their patients’ involvement in proceedings.
• States that cover abortions with their own state Medicaid funds should ensure—with encouragement and guidance from the federal government as needed—that their reimbursement rates are sufficiently high to make it widely accessible.

For the first time, millions of Americans are waking up to a world in which they are less safe and have fewer legal protections than they did a month ago. While none of these solutions will be a silver bullet that can immediately restore those rights, they represent concrete, actionable steps that Congress and others can take to lessen the harms from these radical, consequential, and wrongly decided rulings.

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Ben Olinsky

Senior Vice President, Structural Reform and Governance; Senior Fellow

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