Congress can address the Supreme Court's abuse of power

It's about limiting the kinds of cases the Supreme Court can hear in the first place

Photo by Ian Hutchinson on Unsplash

The Supreme Court majority is out of control, drunk on its own power. It is taking steps to dismantle not only foundational civil rights but also the structure of the Constitution itself. This may sound hyperbolic, sure. But as I’ve explained in this Substack, the Court’s ruling in Trump v. United States, which gave presidents immunity for crimes committed using the massive powers of the office, was antithetical to American democracy itself. That decision was “ultra vires”—meaning beyond the legal power of the Court under Article III of the Constitution. Only voters, through ratification of a constitutional amendment, have the power to make such a change to our nation’s charter.

The Court did it because it can get away with it.

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Prior to the Trump case, I wrote a column for Politico offering a relatively straightforward way that Congress can curb the Supreme Court majority’s abject power grabs. My suggestion would not have forestalled the Trump decision, but it could make headway in re-establishing Congress’s role in ensuring an accountable government.

At the beginning of June, the Supreme Court unanimously rejected a challenge to the FDA’s approval of the abortion drug, mifepristone. Writing for the majority, Justice Brett Kavanaugh reprimanded the plaintiffs for failing to establish standing to sue – in his words, their objections to the use of mifepristone to terminate pregnancies were not “sincere” enough to satisfy Article III of the Constitution.

Kavanaugh was right.

The Court in FDA v. Alliance for Hippocratic Medicine held that the plaintiffs must prove that they themselves had been harmed by mifepristone. Justice Kavanaugh quoted the conservative icon, Justice Antonin Scalia, who wrote that the Constitution “requires a plaintiff first to answer a basic question: ‘What’s it to you?’” In other words, the plaintiffs must have standing to sue; otherwise, they have no business asking unelected federal judges for help.

This was an interesting opinion to come from this right-wing majority because the same cadre of justices has not required every plaintiff to meet this standard in other cases involving matters of immense political, cultural, and ideological significance. In Biden v. Nebraska and 303 Creative v. Elenis, for example, the Court issued rulings even though the plaintiffs raised generalized grievances that affected the general public and not the plaintiffs personally—the kind of thing that Scalia would have vehemently argued was appropriate only for elected legislators, not judges.

The current law of constitutional standing derives from decades of Supreme Court decisions. It requires that a plaintiff come to court with an injury unique to them, caused by the defendant, and that if the court were to rule in their favor, that injury would be fixed. This has never been a rigid, definitive test that courts can strictly follow. Instead, courts have long struggled to consistently define what concrete injury looks like. The problem is that the modern Supreme Court supermajority, when it happens to suit the conservative justices, has dispensed with standing altogether. This is a power grab, plain and simple.

Congress can—and should—turn Scalia’s test for constitutional standing into a statute that would narrow the kinds of cases that the Supreme Court can hear. Congress has the constitutional power to do this. Even if the right-wing justices struck down such a law as infringing on their constitutional powers, codifying standing law would send an important message: Congress is willing to impose reasonable checks and balances on the justices.

Here’s a deeper dive into what I’m talking about.